On Point

State v. Anthony R. Giebel, 2013AP1874-CR, District 2, 4/9/14; c0urt of appeals decision (1-judge; ineligible for publication); case activity

Giebel challenged his misdemeanor repeater sentence based on the holding in State v. Gerondale, Nos. 2009AP1237/1238-CR, unpublished slip op. (WI App Nov. 3, 2009). While his appeal was pending, the court of appeals decided State v. Lasanske, 2014 WI App 26, ___ Wis. 2d ___, ___ N.W.2d ___. Under Lasanske, Giebel’s sentence of 18 months of initial confinement and 6 months of extended supervision is legal.

A few links of possible interest to start the week:

A graphic illustration showing where and why prisoners are incarcerated in the United States, from the Prison Policy Initiative: Mass Incarceration: The Whole Pie.

The latest from Michael O’Hear at the Marquette Law School who, with Darren Wheelock, of Marquette’s Department of Social & Cultural Sciences, has been studying Wisconsinites’ attitudes toward Truth-in-Sentencing: Imprisonment Inertia and Public Attitudes Toward “Truth in Sentencing”.

And a story both sad and frightening about a “rogue” court reporter “channelling his inner ‘Shining'”: coverage here and here (via appellatesquawk).

Issues Presented:

1.     Has the court of appeals effectively overturned this court’s precedent recognizing undue harshness as a ground for sentence modification?

2.   Is the time ripe for this court to put teeth in the McCleary-Gallion mandate that the appellate courts ensure that sentences – particularly sentences in the highest range – are rational and explainable?

Court of Appeals opinion: State v. Mark S. Rigdon, 2013AP200-CR, District 2, 2/12/14 (per curiam)

Petition for Review filed 2/27/14 (Rigdon PFR); case activity

As carefully and compellingly explained in Rigdon’s Petition for Review, this case asks whether there is any sort of meaningful sentencing review in this state. The supreme court has long recognized a claim for sentence modification based on undue harshness, e.g., State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975), but the court of appeals routinely rejects such claims (as it did in this case) because the sentence doesn’t exceed the lawful maximum. But a sentence exceeding the maximum must be commuted under § 973.13, so by limiting harsh and excessive claims to illegally long sentences, the court of appeals has effectively (and improperly) overruled the precedent recognizing the claim.

Regarding the second issue, despite the supreme court’s “re-invigoration” of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the court of appeals often appears to give only lip service to the McCleary-Gallion mandate, and so does not meaningfully review sentences at all. As one court of appeals judge memorably put it, “review of sentencing is now akin to hoping that Lucy will finally let Charlie Brown kick the football. There is something unsettling about the courts offering the appearance of hope where hope does not exist.” State v. Klubertanz, 2006 WI App 71, ¶¶47-48, 291 Wis. 2d 751, 713 N.W.2d 116 (Dykman, J., concurring). Perhaps the supreme court will take this opportunity to really reinvigorate meaningful appellate review of criminal sentences.

Dane County DHS v. Latasha G., 2014AP45 & 2014AP46, District 4, 4/3/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2014AP45; 2014AP46

Latasha argues she was determined to be unfit based on a condition that was impossible for her to satisfy due to an order in criminal cases barring any contact with the girls. Thus, the termination violated her substantive due process rights under Kenosha Cnty. D.H.S. v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, which held a mother’s substantive due process rights were violated by termination on a continuing CHIPS ground, § 48.415(2), based solely on the mother’s failure to meet the conditions of return that were impossible for her to meet while she was incarcerated. The court of appeals rejects her argument.

Latasha was criminally charged with abuse of her two children, and the children were placed out of the home in an associated CHIPS proceeding. (¶¶2-3). Latasha was ordered not to have any contact with the children as a bail condition in the criminal cases, and the CHIPS order allowed contact only upon certain conditions, including removal of the no contact order in the criminal cases. (¶3). Latasha tried unsuccessfully to modify the no contact order before being convicted and sentenced to prison. (¶4). The County thereafter filed a TPR petition under § 48.415(4), which applies when a parent has been denied periods of physical placement or visitation under an order in certain types of cases, and at least one year has elapsed since the order was issued without any modification that permits physical placement or visitation. (¶5). The circuit court granted summary judgment on the petition. (¶¶6-7).

The court of appeals assumes, without deciding, that Jodie W. applies to TPR proceedings under § 48.415(4) and that due process is violated if the sole reason a parent has been denied placement or visitation for at least a year is that it is impossible for the parent to meet the conditions for placement or visitation solely because of the parent’s incarceration. Under those assumptions, Latasha needs to show she was unable to have physical placement or visitation solely because of the fact she was incarcerated, and she has not done so:

¶13      It is undisputed that in the criminal cases against Latasha, the circuit court imposed an order restricting her contact with Ivyonna and Ceceilia. However, the record does not support a reasonable inference that those conditions were imposed merely by virtue of Latasha’s incarceration. Many parents are incarcerated but are still permitted contact with their children. Instead, the reasonable inference here is that the orders restricting Latasha’s contact were imposed in light of Latasha’s physical abuse of Ivyonna and Ceceilia, matters entirely within her own control, which led to the charges against her and her subsequent convictions. Latasha has thus failed to demonstrate a reasonable inference that she was not able to meet the conditions of the CHIPS order solely because of incarceration.

State v. Scott Maher, 2013AP1815, District 4, 4/3/14; court of appeals decision (not recommended for publication); case activity

The circuit court impermissibly weighed the relative persuasiveness of conflicting examination reports of experts when it denied Maher’s § 980.09 petition without holding a discharge hearing when it said it had “some ability apparently to assess the accuracy of the expert’s report or their qualifications” and concluded that the “wildly different conclusions” reached by the state and defense experts based on the same information “certainly I think calls into question how much [a] finder of fact might be able to rely on Dr. Wakefield [the defense expert].” (¶11). 

The circuit court’s reference to assessing an expert’s accuracy or qualifications presumably referred to a passage in State v. Arends, 2010 WI 46, ¶39, 325 Wis. 2d 1, 784 N.W.2d 513; but that passage refers to an expert not qualified to make a psychological determination or whose report is based on a misunderstanding or misapplication of the law, and neither of those apply here. “Instead, the court based its decision on the idea that Wakefield’s conclusions appeared ‘wildly’ different from those of other experts.” (¶15). The question remains whether any facts support a finding in favor of Maher, and the answer is “yes”:

¶16      Our review of the record shows that Wakefield provided support for her conclusions upon which a trier of fact could reasonably rely. Relying on the Static-99R and MATS-1 instruments, the fact that Maher was now into his forties, her observations that his record of behavior and attitudes have improved at least to a degree, and his presentation in an interview, Wakefield concluded that it is not more likely than not that Maher would commit a sexually violent offense. As Maher now points out, “Wakefield’s report specifically links Maher’s current age to the methodology she employed using the [newly revised] Static-99R.” It is of course an open question whether Wakefield’s conclusions would be persuasive to a finder of fact at a discharge hearing after a full airing of her opinions and those of other experts, with the opportunity for cross-examinations. However, the circuit court cannot base its decision under Wis. Stat. § 980.09(2) on a prediction that she would likely not be persuasive. See Arends, 325 Wis. 2d 1, ¶40 (“We reject the State’s argument that the circuit court may weigh evidence favoring the petitioner directly against evidence disfavoring the petitioner.”).

State v. Kadeem R., 2013AP2769, District 2, 4/2/14; court of appeals decision (1-judge; ineligible for publication); case activity

The juvenile court didn’t erroneously exercise its discretion under § 938.18 when it waived jurisdiction over a 16-year-old with no prior juvenile history for being an accomplice to an attempted nonviolent burglary. (¶¶2-5). There was no issue as to prosecutive merit, § 938.18(4), so the question was the application of the criteria under § 938.18(5). All those factors favored Kadeem except, in the mind of the juvenile court, the seriousness of the offense, and that criterion drove the waiver decision. (¶¶5, 7-8).

¶10      So, the real question is whether the seriousness of the crime merited waiver. Here, the court said that it considered attempted burglary to be a serious crime, one of the most serious a juvenile can commit. A strong argument can be made that when one considers all the Class A, B, C, D, and E crimes, a Class F crime is not quite the same. This is especially so when reading Wis. Stat. § 938.18(5)(b), the criterion which states that one consideration is “[t]he type and seriousness of the offense, including whether it was against persons or property and the extent to which it was committed in a violent, aggressive, premeditated or willful manner.” The crime here was against property and was not violent or aggressive.

¶11      However, what makes this crime serious, and what this court believes the juvenile court was concerned about when it called this a serious crime, is that a rash of burglaries were being committed in Racine with the use of latex gloves; that one of the juveniles here admitted that he had obtained a pair of blue latex gloves from a box that an adult person, last name unknown, had in his house; and that this same adult provided the machete to use. This suggests more than simply two kids coming up with a spur-of-the-moment idea to get into a vacant house and see what they could find. Rather, it suggests that Kadeem is part of a premeditated, willful, and recurring plan to burglarize places with the aid of gloves so as to avoid detection. That is what makes this serious.

The court treats the waiver decision as an exercise of discretion (¶6), but notes that § 938.18(6) seems to make it a question of fact by requiring a statement of “findings” and a waiver of jurisdiction if there is “clear and convincing evidence” that juvenile court jurisdiction is contrary to the best interests of the juvenile or of the public. “The legislature is thus speaking of fact-finding with a clear and convincing evidentiary burden. The courts are speaking of the decision as a discretionary one. No case has resolved this anomaly. And since the supreme court has cited both standards, one right after another, without explanation, this court is in no position to tackle the issue. See, e.g., J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991).” (¶6 n.4). The court says it would affirm in this case under either standard; but if the statutory standard gives you a better argument, think about asserting that the courts have been wrong to say the waiver decision is merely discretionary. At some point the supreme court will have to “resolve[] this anomaly.”

State v. Matthew M. Moskopf, 2013AP771-CR, District 2, 4/2/14; court of appeals decision (one judge; ineligible for publication); case activity

The police had collective knowledge of specific, articulable facts supporting a reasonable suspicion to stop Moskopf’s vehicle where two 911 calls to the police department dispatcher–one from a bartender, another from an off-duty cop–reported that a man had been trying to get back into a bar he had been kicked out of, was combative, and was wearing a gray shirt and jeans, and where another officer responding to the call reported he had almost been hit by a black Escalade heading north from the bar. A second officer located the Escalade north of the bar, noted its driver matched the description of the combative, ejected bar patron, and stopped the vehicle. (¶¶2-3).

¶9        …. Moskopf makes much of the fact that the dispatcher described him as “highly intoxicated” while the 911 callers had not used this phrase. This is of no moment. Reasonable suspicion is formed from articulable facts and the reasonable inferences from those facts. [State v.] Waldner, 206 Wis. 2d [51,] 55-56[, 556 N.W.2d 681 (1996)]. Reasonable suspicion is based on the totality of the circumstances. See [State v.] Young, 212 Wis. 2d [417,] 424[, 569 N.W.2d 84 (Ct. App. 1997)]. Here, the dispatcher could reasonably infer from the reported facts—Moskopf had been kicked out of the bar, it was around 10:30 p.m., Moskopf was trying to get back into the bar, and Moskopf was combative with the bartender—that Moskopf was intoxicated. This information, combined with the report that the black Escalade almost hit DeWitt’s vehicle, supports reasonable suspicion that Moskopf was intoxicated.