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Inconsistent (unpublished) decisions on what’s required for domestic abuse surcharge

State v. Anthony Iven Jones, A/K/A Hashim Hasan, 2017AP364, 6/5/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury found Jones guilty of bail jumping. one of his bond conditions had been that he stay 500 feet away from his former wife. He made a threatening phone call to her and was discovered by a police officer to be “approximately 92 feet away” from her house. He first claims there was insufficient evidence to support his conviction, but the court does not agree, based on the essential facts just noted. (¶12).

Jones also wishes to have the name “Anthony Iven Jones” removed from his JOC in favor of his legal name, Hashim Hasan. The circuit court added the legal name at Jones’s request but only as an “a/k/a” to Jones. The court of appeals agrees with the circuit court that “both law enforcement and the public have an interest in being able to access the public records of this case under the name by which he was charged and convicted” and so upholds the discretionary decision. (¶16).

Jones makes one other claim–that the court shouldn’t have imposed the domestic abuse surcharge. That surcharge is governed by Wis. Stat. § 973.055, which requires it to be imposed where the defendant is convicted of enumerated crimes (bail jumping among them) “against” a person who has one of the enumerated relationships with the defendant. But Jones says for the surcharge to apply the offense must also qualify as “domestic abuse” under Wis. Stat. § 968.075, which defines the term to include various broad categories of acts (inflicting pain, instilling fear, etc.) against those same people. He relies, for this argument, an unpublished but citable case from 2013: State v. O’Boyle, 2013AP1004.

The court here says O’Boyle didn’t say the surcharge can only be imposed where § 968.075 applies, but O’Boyle very much did, repeatedly (albeit in a nonbinding way): “Although not specifically mentioned, implicit in WIS. STAT. § 973.055 is that the complained of conduct must fall within the definition of domestic abuse found in WIS. STAT. § 968.075(1)(a)1.—4.” O’Boyle at ¶24. So, as sometimes happens with unpublished opinions, we now have two decisions which can be cited for exact opposite propositions.

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