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Court of appeals affirms sentence aimed at holding defendant for trial in different county; accuses counsel of lacking candor

State v. Rodney Vincent McToy, 2013AP832-CR, District 1, 10/15/13, (1-judge; ineligible for publication); case activity

McToy pled guilty to two charges of misdemeanor bail jumping stemming from a domestic dispute with Ms. H. The parties briefed a straightforward Gallion issue:  Did the Milwaukee County Circuit Court erroneously exercise its discretion when it failed to provide a “rational and explainable basis” for the sentence it imposed—200 days in jail for one count and 2 years probation for the other? The court said very little about what happened in this case.  Instead, it focused primarily on separate domestic abuse cases involving the same victim against McToy in Waukesha County.  Indeed, the court admitted that: (1) it picked 200 days of jail time in order to ensure that McToy was in custody when the Waukesha case went to trial; and (2) it did not know how to address McToy’s “probationary needs.”

That’s okay, said the court of appeals.  The circuit court was right to focus on the abuse allegations and the victim’s refusal to cooperate in the Waukesha case.

As the circuit court recognized, “protection of the public” is a significant sentencing criterion.  Ms. H. is a member of the public, of course, and was fully entitled to the circuit court’s protection irrespective of whether she wanted it, or was too afraid to request it.  The circuit court’s on-the-Record explanation was both “‘rational and explainable.’”  See Gallion, 2004 WI 42, ¶49, 270 Wis. 2d at 562, 678 N.W.2d at 209 . . .  Thus, the circuit court noted both [sic] that “the protection of [Ms. H.] is an important” sentencing factor:  “How do I protect her if she doesn’t protect herself by staying away from the defendant?”  Further, the circuit court was fully justified in considering all of McToy’s history with Ms. H., irrespective of the criminal cases’ outcome.  Slip Op. ¶ 8. (citing State v. Frey, 2012 WI 99, ¶¶ 44-48; State v. Arredondo, 2004 WI App 7). . .

[A]s it explained to McToy, the two-year term of probation would help effectuate the circuit court’s “desire is to protect [Ms. H.]” as well as help McToy with his stated goal of avoiding Ms. H.  Contrary to McToy’s argument on this appeal, the circuit court considered that McToy needed to have an enforcing mechanism to keep him from Ms. H., something his history showed he was unable to do on his own.  Slip Op. ¶9. (Grammar error in Slip. Op.).

Okay. Fine.  But the decision also administers a strong tongue-lashing to McToy’s lawyer for filing appellate briefs that referred to the Waukesha cases as “unrelated” or “wholly unrelated” to the Milwaukee County case which gave rise to this appeal, though they involved the same victim.  Four times McToy’s briefs noted the difference between the charges in the Waukesha cases and the charges in the Milwaukee case.  And (as preferred by the court of appeals) McToy’s briefs mostly refer to the victim as “the victim” rather than naming her.  Nevertheless, citing SCR 20:3.3, the opinion cautions counsel that “lawyers owe full candor to the tribunals before which they appear” and that “[t]echnically correct but incomplete assertions can mislead or tend to mislead, as they do here, and this, too violates the obligation of unalloyed honesty.” Slip Op. ¶5.  (Emphasis in original).  It gets worse.

All On Point will say is that a quick, admittedly unscientific search for “SCR 20:3.3” or the term “candor toward the tribunal” on Westlaw turned up a fair number of recent District I cases accusing counsel of dishonesty.  State v. Lock, 2013 WI App 80; State v. Martin, 2013 WI App 55; Kirk v. Credit Acceptance Corp., 2013 WI App 32; In re Zachary K., 2012 WI App 132; Tierney v. Berger, 2012 WI App 91; Questions Inc. v. City of Milwaukee, 2011 WI App 126; Estate of Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101; State v. Devries, 2011 WI App 78; Pausch v. Cormier, 2011 WI App 121; State v. Neal, 2011 WI App 114.  Of course, Westlaw doesn’t pick up every decision, which means many escape scrutiny.

Districts II, III and IV seem more restrained.  So, are lawyers appearing in the District I court of appeals less honest than lawyers practicing in the other three districts or is there, perhaps, some other explanation for this unhappy trend?

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