On Point

Barron County DHHS v. Maria A., 2013AP2735, District 3, 4/1/14; court of appeals decision (1-judge; ineligible for publication); case activity

Under the highly deferential standard of review for sufficiency claims, State v. Quinsanna D., 2002 WI App 318, ¶30, 259 Wis. 2d 429, 655 N.W.2d 752, the evidence was sufficient to support the finding that Maria failed to assume parental responsibility for her daughter, Aliyana, under § 48.415(6). The evidence showed Maria cared for Aliyana for the first two-and-one-half years of her life and could be a loving and affectionate parent. But it also showed that soon after Aliyana’s birth there were reports about Maria’s mental health problems and homelessness and her inability to meet Aliyana’s nutritional needs. In addition, after Aliyana was placed in foster care through a CHIPS proceeding based on neglect, § 48.13(10), Maria did not exercise the supervision, protection and care necessary to keep Aliyana out of harm’s way, she would “in essence” harass the child, and Aliyana may not have recognized Maria as her mother. (¶¶3-14, 25-27).

Maria also argued her due process rights were violated because the County’s argument about Maria’s failure to assume parental responsibility cited Maria’s absence from Aliyana’s life that was a direct result of Aliyana’s foster care placement, making Maria analogous to the mother in Kenosha Cnty. DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. (¶¶31-33). The court (¶¶ 34-38) concludes the evidence shows this case is not like Jodie W.:

¶37      …. Unlike Jodie W., the record here does not support Maria’s assertion that she was found to have failed to assume parental responsibility based solely on the fact that Aliyana was placed in foster care and Maria did not have twenty-four-hour care of her. Maria overlooks the evidence supporting the jury’s verdict—that she neglected Aliyana, that Aliyana did not recognize her as her mother, that Maria did not appropriately supervise or keep Aliyana safe, and that Maria harassed Aliyana. We therefore conclude Wis. Stat. § 48.415(6) as applied to Maria was narrowly tailored to meet the Department’s compelling interest of protecting Aliyana from an unfit parent.

And while the jury rejected the County’s alternate TPR ground of continuing CHIPS, § 48.415(2), because it found the Department had not made reasonable efforts to provide court-ordered services (¶18), that does not affect the jury’s finding on the separate and independent ground of failure to assume parental responsibility. (¶39).

Those of you with petitions for review pending, start watching your mail or the WSCCA site around April 16th.  That the date of SCOW’s next petitions conference.

April is the last month of argument for SCOW’s 2013-2014 term.  Here is the argument schedule for cases involving issues of interest to folks interested in indigent defense:

April 3, 2014, 9:45 a.m.       State v. Andres Romero-Georgana, 2012AP55 (Defense counsel: Sara Brelie, Byron Lichtstein)

Whether the defendant’s Wis. Stat. § 974.06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing.

 Whether postconviction counsel was ineffective under the standard set forth in Smith v. Robbins, 528 U.S. 259 (2000) (to show postconviction counsel was deficient, defendant must generally demonstrate counsel ignored an issue that was “clearly stronger” than the issues raised on direct appeal in order).

 April 3, 2014, 10:45 a.m.      Lorenzo D. Kyles v. William Pollard, 2012AP378-W (Defense counsel: Rob Henak)

Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.06 motion or a Knight petition?

April 3, 2014, 1:30 p.m.      State v. Cortez Lorenzo Toliver, 2012AP393-CR (Defense counsel: Jeff Davis, Matt Vogel)

Did the adult court lose jurisdiction or competency to proceed against a juvenile by failing to make a specific finding at the preliminary hearing that there was probable cause to believe the juvenile committed an offense that gave the adult court jurisdiction over the juvenile?

Did the circuit court erroneously exercise its discretion in denying Toliver’s motion for “reverse” waiver from adult to juvenile court under 970.032?

Did the circuit court erroneously exercise its discretion in imposing near maximum, consecutive sentences?

April 8, 2014, 10:45  a.m.      State v. Jimothy Jenkins, 2012AP46-CR (Defense counsel: Joseph Redding)

In deciding whether trial counsel was ineffective for failing to call a witness, did the postconviction court err by deciding trial counsel’s failure to present the witness was not prejudicial because the witness was not credible?

 April 8, 2014, 1:30 p.m.      State v. Donyil L. Anderson, Sr., 2011AP1467 (Defense counsel: Bill Schmaal)

Did the trial court err in instructing the jury that voluntary consumption of any drug precludes a finding of “mental defect” under § 971.15, where the defendant claimed he suffered from a temporary mental defect based in part on his use of a prescription drug as directed by a doctor?

Did the court of appeals erroneously exercise its discretion in granting a new trial in the interest of justice?

April 9, 2014, 9:45 a.m.      State v. Raphfeal Lyfold Myrick, 2012AP2513-CR (Defense Counsel: Steve Zaleski)

Wis. Stat. § 904.10 provides that evidence of statements that a person made in court in connection with an offer to the prosecuting attorney to plead guilty or no contest to the crime charged or any other crime is not admissible in any criminal proceedings against the person who made the offer. Judging from the State’s initial brief, the issue seems to be whether § 904.10 extends to plea negotiations initiated by the State or only to offers made by the defendant.

United States v. James Alvin Castleman, USSC No. 12-1371, 3/26/14, reversing and remanding United States v. Castleman, 695 F.3d 582 (6th Cir. 2012); case activity

As noted in our analysis of SCOTUS’s decision to grant certiorari, the issue in this case is:

Whether [Castleman’s] Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9).

Section 922(g)(9) bars the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.” The statute defines “misdemeanor crimes of domestic violence” as:

an offense that . . . (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. §921(a)(33)(A).

The court’s first task was to define the phrase “physical force.” It adopted the common law definition from Johnson v. United States, 559 U.S. 133 (2010), which means that “the requirement of ‘physical force’ is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.” Slip op. at 10. In other words, offensive touching is enough. Next the court turned to Castleman’s indictment. Because he pleaded guilty to having intentionally or knowingly causing bodily injury to the mother of his child, which necessarily involves the use of physical force, the crime qualified as a “misdemeanor crime of domestic violence” under § 922(g)(9). Slip op. at 12.

As noted in our prior post, this case is important for lawyers advising clients facing state criminal charges that might qualify as a “misdemeanor crime of domestic violence” and thus result in the loss of the right to possess a gun. Under Castleman, a conviction under Wis. Stat. § 940.19 (battery) would seem to qualify, but it’s less clear whether a conviction under § 947.01 (disorderly conduct) does. Again, see our prior post listing unreported district court opinions that have found certain disorderly conduct convictions fall within § 922(g)(9).

This was a unanimous decision with two concurring opinions. The concurrence worth reading, depending on your mindset, is Scalia’s. In a domestic violence case, you don’t expect to see sarcasm—at least not aimed at organizations advocating for victims of domestic violence. See page 10 of the concurrence.

State v. Jimmy L. Powell, 2013AP1111-CR, 3/27/14, District 4; (not recommended for publication); case activity

This appeal stems from a 1st-degree reckless injury conviction.  Powell, a drug dealer, ran over and/or cut his client’s throat during a deal. His enthusiastic, 38-page initial brief raises 7 issues for review.  This post examines the court of appeals’ decision on 2 of them.

“Other Acts” Evidence Issue: Whether the circuit court erred in admitting “other acts” evidence that Powell had regularly sold cocaine to his victim/buyer when the State never charged him for cocaine dealing?

Holding: The circuit court properly admitted the evidence.  Under Wis. Stat. § 904.04(2)(a), State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and State v. Lock, 2012 WI App 99, 344 Wis. 2d 166, 823 N.W.2d 378, a circuit court may admit “other acts” evidence if (1) it is offered for a proper purpose under § 904.04(2); (2) it is relevant; and (3) its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Said the court of appeals: “The first prong is easily met because it merely requires a theoretical proper purpose. ” Slip op, ¶23.  Here that purpose was two-fold: showing the context of the injury (it occurred during a drug deal) and identifying Powell.  Actually, identification wasn’t an issue, and Powell didn’t object to the jury knowing that this injury occurred during a drug deal.  He just didn’t get why 10 years worth of drug dealing was necessary “context” for the crimes charged (1st-degree reckless injury, attempted 1st-degree intentional homicide, and robbery).   You won’t find the answer in the court of appeals decision.  It just skips ahead to “relevance,” accuses Powell of failing to address  these “obvious reasons” why the evidence is relevant–namely: “the history of drug dealing explains and gives context to Powell’s and [the victim’s] late-night meeting in a dimly lit, remote location.” Slip op. at ¶24. Yes, that’s it.

The big battle involved the prejudice prong.  Powell argued that the State’s repeated references at trial to his 10-years of drug dealing and some 520 past drug deals (35 to 40 of which were with the victim) encouraged the jury to, in effect, convict him for uncharged drug crimes.  After all, the jury acquitted him of 2 out of 3 charged crimes.  But the court of appeals held that the evidence of 10 years worth of drug dealing actually helped Powell by allowing his trial lawyer to argue that it made no sense that Powell would kill such a good client.  Slip op. ¶28.

Bond Money Issue: Where the circuit court sets bond for each count (rather setting 1 bond for a complaint charging 3 counts), and the defendant is acquitted of 2 counts, must the State return the bail money for the 2 acquitted counts?

Holding:  The State need not return the bail money posted for the 2 counts on which Powell was acquitted.  The court of appeals relied upon Wis. Stat. § 969.03(5) of the felony bond statute, but that statute clearly does not address the situation where a surety posts bond for a particular count and the bond receipt lists only that count.  So Powell argued that the bail bond agreement was a contract between the surety and the State, and the State had to abide by it.  See U.S. v. Santiago, 826 F.2d 499, 502 (7th Cir. 1987). The court of appeals, invoking the tired refrain “the argument lacks sufficient legal and factual development,” refused to address it.  Slip op. ¶63.  The idea that a bail bond agreement is an enforceable contract may be an issue of first impression for Wisconsin, but it is hardly new or controversial.  See e.g. State v. Two Jinn, Inc., 264 P.3d 66 (Idaho 2011).   The question of how the statute and the actual terms of the agreement jive deserved more attention than it received.

State v. Andrew M. Obriecht, 2014 WI App 42, petition for review granted 11/14/14, reversed, 2015 WI 66; case activity

When sentence credit for time spent in custody before the defendant was sentenced is not granted until after the defendant has been revoked from parole and reincarcerated, the plain language of § 302.11(7)(am) and (b) requires DOC to apply the credit to the remaining period of parole, not to the defendant’s term of reincarceration.

Obriecht was paroled in March 2011. In September 2011, he violated the conditions of parole, was revoked after a hearing, and reincarcerated. (¶2). A year later he moved the circuit court for 107 more days of sentence credit for time he spent in custody in 1998, 1999, and 2001. The court granted Obriecht’s motion and issued an amended judgment of conviction reflecting the additional credit. (¶3). Citing § 302.11(7)(am), DOC said it would apply the credit to Obriecht’s parole, shortening his maximum discharge date by 107 days, but would not apply it to the period of reincarceration in prison. (¶4). Obriecht objected, and asked the circuit court to intervene, but the circuit court agreed with DOC. (¶¶5-6). So does the court of appeals:

¶13      Under Wis. Stat. § 302.11(7)(b), Obriecht “shall be incarcerated for the entire period of time determined by” DHA. In this case, if the sentence credit were applied to the term of reincarceration ordered by DHA, instead of to the remaining period of parole, Obriecht would not be “incarcerated for the entire period of time determined by” DHA. Such an application of the sentence credit would violate § 302.11(7)(b). We therefore conclude that DOC’s application of Obriecht’s sentence credit to the period of parole, rather than to the term of reincarceration ordered by DHA, is consistent with the plain language of § 302.11(7)(am) and (b). The effect of applying the 107 days of sentence credit to the remaining period of parole is to shorten Obriecht’s overall sentence, while ensuring that he serves the entire term of reincarceration ordered by DHA.

¶14      We acknowledge that the belated application of sentence credit to reduce Obriecht’s overall sentence may not fully cure the failure to properly apply the credit at the time of sentencing. But that problem, if it is present here, commonly occurs when a challenge to a sentence credit decision comes too late to actually affect the duration of time spent in initial incarceration.

This reasoning seems cursory. It puts all its weight on the first sentence of § 302.11(7)(b), which misses the fact that the rest of the paragraph shows the “entire period” of reincarceration  time language to be part of a mandate designed to deny the revoked parolee mandatory release under § 302.11(1) or (1g), not sentence credit under § 973.155. Further, § 302.11(7)(b) assumes there has been an accurate credit determination, for § 302.11(7)(am) explicitly provides both that the remainder of the sentence for which the offender may be reincarcerated is “the entire sentence, less time served in custody prior to parole” and that the revocation order “shall provide the parolee with credit in accordance with ss. 304.072 and 973.155.” And § 973.155(3) says that sentence credit “shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.” These provisions are far more relevant to the issue than § 302.11(7)(b), and seem to support Obriecht’s argument.

But beyond referring to § 973.155(3) in its discussion (¶11) of the granting of credit “[i]n the normal course” of things–i.e., at the time  of original sentencing–the court, beguiled by the language in § 302.11(7)(b), doesn’t address the interaction of these provisions. This is puzzling in light of the court’s acknowledgement (¶14) that its interpretation may not fully cure the failure to give Obriecht the credit at the time of sentencing. Of course, adopting Obriecht’s position would cure the problem, and would also be consonant with the cases recognizing that a sentence credit decision that effectively nullifies the sentence credit earned is improper, State v. (Eliseo) Brown, 2010 WI App 43, ¶8, 324 Wis. 2d 236, 781 N.W.2d 244, citing State v. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655—though unlike the scenarios in those two cases, the result here doesn’t mean the credit is completely lost because it does reduce Obriecht’s time on parole, and therefore the total length of his sentence. All in all, then, the case provides another reason, were one needed, to be careful to get an accurate credit order at the time of sentencing: Getting it later may not do as much good.

State ex rel. Aman Singh v. Paul Kemper, 2014 WI App 43, petitions for review and cross review granted 11/4/15, affirmed in part and reversed in part, 2016 WI 67; case activity

When Singh committed, or was convicted and sentenced for, his offenses, he was eligible for early release under statutes enacted by 2009 Wisconsin Act 28. But by the time he arrived at prison, the early release statutes had been repealed by 2011 Wisconsin Act 38, so DOC told him he wasn’t eligible for early release. The court of appeals holds that the retroactive application of Act 38 violates the ex post facto clauses of the state and federal constitutions.

The early release provisions of 2009 Act 28 took effect on October 1, 2009. (¶3). Singh was convicted and sentenced for the first offense in 2010 and was given an imposed and stayed prison sentence and placed on probation. In July 2011 he committed a new offense; as a result, in December 2011 his probation was revoked and received a consecutive sentence for the new offense. (¶2). In the meantime, on August 4, 2011, Act 38 had taken effect. (¶¶3, 7).

A law violates the ex post facto clauses if it makes more burdensome the punishment for a crime after the crime has been committed or after conviction and sentencing, State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (1994), with the ultimate question being whether the change in the law “creates a significant risk of prolonging [a prisoner’s] incarceration” beyond what it would have been under the law in effect at the time the prisoner committed or was convicted and sentenced on the offense, Garner v. Jones, 529 U.S. 244, 250 (2000). (¶9). Applying this standard here, and relying on State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692 (1974) (invalidating retroactive application of statutory change increasing from 2 years to 5 years the prison time inmate had to serve before parole), and Lindsey v. Washington, 301 U.S. 397 (1937) (invalidating retroactive application of statute that made the previous maximum sentence the mandatory sentence), the court holds that applying 2011 Act 38 to Singh results in a significant risk he would serve more time in prison than under 2009 Act 28:

¶10      Singh was convicted and sentenced on his first offense and committed his second offense when the early release provisions of the 2009 act were in effect. Kemper does not dispute Singh’s contention that he has reached his early release eligibility dates related to these offenses under Wis. Stat. §§ 302.113(2)(b) and (9h) and 304.06(1)(bg)1. & 3. (2009-10), nor that the 2011 act eliminated his eligibility for early release under these provisions. The enactment of the 2011 act has resulted in Singh being required to serve the full term of the initial confinement portion of his sentence for these two offenses while the law in effect when he committed or was convicted and sentenced on them afforded him the opportunity to be released earlier. Because we conclude that eliminating this opportunity results in a significant risk of prolonging Singh’s incarceration, the portions of the 2011 act which eliminate Singh’s eligibility for early release under these 2009 act provisions violate the ex post facto clauses when applied to these offenses.

The state relies on California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995), to no avail. (¶¶14-17). The statutory changes there were “markedly different” because they merely adjusted the date the prisoner might become eligible for early release and did not, as here, “altogether eliminate the early release opportunities the law previously afforded….” (¶18).

However, the court validates application of one change made by 2011 Act 38. One of the early release provisions allowed a prisoner to earn positive adjustment time (PAT). Adjustment of a sentence based on PAT was done administratively, though the sentencing court was given notice so it could, if it wanted, hold a hearing on whether to approve, reject, or modify the early release. Under 2011 Act 38, an inmate who earned PAT while the 2009 law was in effect (that is, between October 1, 2009, and August 3, 2011) must petition the sentencing court to get the sentence adjusted. (¶21). This procedural change does not violate the ex post facto clauses:

¶23      Singh correctly points out that under the old law, if a sentencing court was notified of an inmate’s pending release based upon PAT and declined to hold a hearing on the matter, early release to extended supervision could proceed, while under the new law, an inmate will not secure release unless the court holds a hearing and determines that release is appropriate. Ultimately, however, under the old and new law, the sentencing court is notified of the potential release based upon PAT and makes a discretionary decision to grant or deny early release. Under the old law, release could be effectuated by the court either declining to hold a hearing or holding a hearing and granting release, and could be denied by the court holding a hearing and ordering the inmate to remain in prison. Wis. Stat. §§ 302.113(2)(c), 304.06(1)(bk) (2009-10). Under the new law, the court can grant release after holding a hearing, or deny release, either with or without a hearing. See Wis. Stat. § 973.198(3), (5).

Finally, the court rejects Singh’s argument that he should earn PAT for the time credited to his sentence based on his custody in jail before being taken to prison. The plain language of §§ 302.113(2)(b) and 304.06(1)(bg)1. makes it clear that PAT is earned based on following the regulations of the prison, not the county jail. (¶¶28-29).

A benefit for a finite (but not insignificant) number of prisoners who committed offenses or were sentenced during the 22 months the early release provisions were in effect. Besides PAT–which varied from one day for every two, three, or 5.7 days served, based on the class of felony involved–the other release provisions allowed early release for certain nonviolent felons who were within 12 months of their release date. And, persons whose offense was committed before October 1, 2009, could petition the Earned Release Review Commission for release after serving 75% or 85% of their confinement, if they hadn’t petitioned the sentencing court under the pre-early release regime. (Go here and  here for links to documents with lots more information.)

The Wisconsin Supreme Court has issued a decision on the parties’ motions for reconsideration in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609 (per curiam), the decision from last term that declined the state’s request to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). The decision on reconsideration is described and discussed in an update to our post on the decision from last term.