On Point

Review of an unpublished court of appeals decision that is not available online; case activity

Issue:  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?

SCOW is wading into a procedural thicket with this case.  Kyles was convicted of 1st-degree reckless homicide by use of a dangerous weapon.  The day of his sentencing he signed a “notice of right to seek postconviction relief” form indicating that he was “undecided” about pursuing postconviction relief but also indicating that he understood that he had to give his lawyer a decision within 20 days.  Kyles insists that within that 20-day period he made numerous efforts to contact his lawyer to say that he wanted an appeal, but his lawyer didn’t take his calls or respond to his letter.  As you might guess, no notice of intent was filed.  Afterwards,  Kyles filed extension motions and habeas petitions in the court of appeals, the circuit court, the federal district court–every procedural maneuver he could think of to get his appellate rights reinstated.   He was blocked at every turn.

The court of appeals’ decision issue here holds that a Knight petition (which alleges ineffective assistance of appellate counsel) is not proper vehicle for Kyles’ claim.  He needed to file a habeas petition in the circuit court.  That’s questionable given that the circuit court lacks the authority to issue the remedy Kyles wants–an extension of the deadline to file a notice of intent.  The State’s response to Kyles’ petition for review concedes that Wisconsin has never resolved the question of where a habeas petition alleging ineffective assistance of counsel for failing to file a timely notice of intent should be filed–in the trial court or the court of appeals. Looks like SCOW will now decide the issue identified in State v. Quackenbush, 2005 WI App 2, 278 Wis. 2d 611, 692 N.W.2d 340.  See also, State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997) and State ex rel. Santana v. Endicott, 2006 WI App 13, 288 Wis. 2d 707, 709 N.W.2d 515.

Point of interest:  Kyles filed a pro se petition for review, and Attorney Rob Henak is representing him on the merits pro bono.  Snaps for both!

State v. Andrew K. Valiquette, 2013AP909-CR, District 4, 12/19/13; court of appeals decision (1-judge; ineligible for publication); case activity

Valiquette, convicted of resisting arrest, argues the police lacked lawful authority when they moved to pat him down for weapons, and asserts trial counsel’s failure to pursue that defense was based on a misunderstanding of the applicable law. The court of appeals disagrees, concluding instead that trial counsel’s testimony indicates she made a strategic decision to focus on the issue of whether Valiquette resisted instead of whether the police were acting with lawful authority. (¶¶21-23). In light of the standards applicable to an officer’s authority to conduct a pat down for weapons and the facts of this case, counsel’s decision was not deficient. (¶¶24-25).

Valiquette’s related arguments fare no better. His claim that the standard jury instruction on resisting was deficient for not fully explaining to the jury the meaning of “lawful authority” is forfeited. Trial counsel didn’t object to the standard instruction and Valiquette didn’t allege she was ineffective for failing to object. (¶¶16-17). And while Valiquette gave testimony contradicting the police officers’ version of events, there is credible evidence to support the jury’s finding that Valiquette knew police were acting with lawful authority and that he resisted an officer. Thus, the evidence is sufficient to support the verdict. (¶¶9-15). Finally, Valliquette is not entitled to a new trial in the interest of justice because the real controversy–the reasonableness of the police officers’ conduct in general and their lawful authority in particular–was fully tried:

¶30      Valiquette does not argue that the jury was precluded from considering any important information bearing on those issues specifically, or his guilt or innocence as a general matter. Rather, he maintains that the jury was not given sufficient opportunity to weigh the reasonableness of his and Officer Gonzalez’s actions. However, the jury heard both Valiquette’s and Officer Gonzalez’s testimony regarding what transpired on the night in question. Valiquette does not point to any particular ruling by the court that precluded the jury from considering his point of view. Thus, I am simply not persuaded that this case is one of the exceptional situations where this court should grant a new trial in the interest of justice. See Vollmer v. Luety, 156 Wis. 2d 1, 11, 456 N.W.2d 797 (1990).

State v. Malcolm A. Butler, 2014 WI App 4; case activity

The 120-day deadline for trying a case under the Intrastate Detainer Act, § 971.11(2), is explicitly “subject to” the speedy trial statute, § 971.10; thus, the Intrastate Detainer Act incorporates the provision of the speedy trial statute that allows for continuances for good cause, § 971.10(3)(a), and those continuances may go beyond the 120-day deadline.

¶7        Butler argues that Wis. Stat. § 971.11(2) simply requires the State to abide by a speedy trial demand when there is also a prompt disposition request. He argues a continuance beyond the 120-day period is never permitted under the Intrastate Detainer Act. We reject Butler’s conclusion. Butler’s theory does not comport with the specific conclusion by the [State v.] Davis[, 2001 WI 136, 248 Wis. 2d 986, 637 N.W.2d 62] and [State v.] Adams[, 207 Wis. 2d 568, 558 N.W.2d 923 (Ct. App. 1996)] courts that the “subject to [Wis. Stat. §] 971.10” language following the 120-day time period in § 971.11(2) refers to the court’s authority to grant a continuance for the reasons specified in § 971.10(3)(a). Indeed, Butler’s conclusion that the 120-day time period set forth in § 971.11(2) cannot be extended is fundamentally inconsistent with the Davis court’s conclusion that failure to bring a case to trial within 120 days triggers dismissal, which can be without prejudice and therefore allow for refiling. Davis squarely rejected the hard deadline Butler promotes. Whether a good faith extension is granted before the trial, with a continuance, or after the State fails to bring the case on for trial within 120 days, with a dismissal without prejudice where good cause is shown, the concept is the same and is allowed under the statute.

Butler had demanded both a speedy trial under § 971.10 and a prompt disposition under the Intrastate Detainer Act. (¶2). When the circuit court continued the trial to a date past the 120-day Detainer Act deadline it considered the factors in the speedy trial statute, § 971.10(3)(b), but did not explicitly address Butler’s demand for a prompt disposition. (¶10). No matter, since the Detainer Act incorporates the speedy trial statute’s good-cause standard:

¶11      The circuit court articulated the reasons for the continuance based on the factors set forth in the Speedy Trial Statute. The “subject to” language in Wis. Stat. § 971.11(2) of the Intrastate Detainer Act incorporates a good cause continuance under Wis. Stat. § 971.10(3)(a) of the Speedy Trial Statute. While the circuit court did not explicitly address Butler’s intrastate detainer request, we see no harm, as the request and its attendant time limit were subject to the speedy trial grounds and authorization for a continuance. The circuit court addressed the statutory factors, applied them to the facts of this case, and reached a well-reasoned decision to allow a continuance. We will not overturn this appropriate exercise of discretion.

State v. Cody Phillips, 2014 WI App 3; case activity

This case reached the court of appeals via a petition for leave to appeal a non-final order.

The State’s juvenile delinquency petition alleged that Phillips committed one count of 1st-dgree sexual assault of child by use or threat of force and a second count of 2nd-degree assault of a child.  At the State’s request, the juvenile court waived Phillips into adult court on both counts and ultimately pled no contest to two counts of 2nd-degree sexual assault of a child.  Ultimately, Phillips moved to vacate his pleas because–as to count one–he was statutorily ineligible to be waived into adult court and he was not subject to a mandatory minimum sentence of 25 years, as the State had claimed.  But it insisted that it could proceed against Phillips, on both counts, in adult court because: (1) he was not entitled to remand on count 1, (2) he had, in the meantime, become an adult, and (3) the waiver order as to Count 2 was valid.  The court of appeals would have none of it.

Issue:  What remedy is available to a juvenile who is improperly waived into adult court?  The State says the defendant may only withdraw his pleas and have his adult-court conviction vacated.  The court of appeals, siding with Phillips, said “wrong.” The remedy is remand to juvenile court.

¶8 We cannot accept the State’s argument as it relies on inapplicable authority and contradicts the plain language of Wis. Stat. § 938.12(2), which states that the juvenile court retains jurisdiction over ongoing cases where a delinquency petition is filed when the alleged offender is a juvenile. The fact that errors by the State, Phillips’s attorneys, and both the juvenile and adult courts delayed the proceedings and Phillips has since become an adult does not affect the juvenile court’s jurisdiction over this matter under § 938.12(2). See D.W.B. v. State, 158 Wis. 2d 398, 404-05, 462 N.W.2d 520 (1990). Phillips was a juvenile when the delinquency petition relying on Counts 1 and 2 was filed, and without a valid waiver order, the juvenile court retained jurisdiction over Phillips for those charges.

¶9 The State’s initiation of proceedings against Phillips on Count 1 in juvenile court means that Phillips may never be waived into adult court on this charge.  His current age and the potential dispositions available to the juvenile court upon remand do not negate the plain language of the Juvenile Code or the guidance of our case law.  See id.  (State may not usurp power from juvenile court over juveniles who turn eighteen during pending juvenile court proceedings).  For the State to argue that the “ends” of adult court jurisdiction justify the “means” of obtaining adult court jurisdiction contrary to what our statutes allow is a false argument.

Issue:  Where a waiver into adult court is valid only as to one count, may the State proceed against the defendant in adult court on all counts?  Again, the court of appeals answered “no.”

¶10 We also reject the State’s contention that the waiver order is valid as it pertains to Count 2, permitting jurisdiction in adult court to attach for that count. The juvenile court did not have competency to consider waiver for one of the counts on which the waiver order was based. The waiver order was thus invalid and ineffective, precluding the adult court from assuming jurisdiction. See State v. Aufderhaar, 2005 WI 108, ¶28, 283 Wis. 2d 336, 700 N.W.2d 4. Only the juvenile court can determine whether waiver over Phillips is appropriate based on Count 2 alone.

State v. George A. Trinka, 2013AP539, District 2, 12/18/13; (not recommended for publication); case activity

A jury found Trinka guilty of 1st-dgree reckless homicide and 1st-degree recklessly endangering safety, both with use of a weapon.  The issue on appeal was whether the trial court erred in allowing the State to introduce into evidence a family photograph of the victim, his wife, and their children.  Trinka argued that the photo was irrelevant and prejudicial in that it improperly invoked the jury’s sympathy.  The court of appeals dodged the question of whether the trial court erred in admitting the photo.  It held instead that even if an error occurred it was harmless due to the overwhelming evidence (recounted within the decision) supporting the conviction. 

Under State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270, the State had the burden of proving beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error. After applying Martin‘s list of “harmless error” factors,  the court of appeals held that the State had met its burden:

Based on our review, we conclude the State presented a strong case that Trinka was guilty of the two charged offenses. Had the jury found the State’s evidence lacking, it could have found Trinka guilty of lesser-included offenses, instead of the charged offenses. It did not. The challenged photo played an extremely minor, indeed almost insignificant, role in the trial. Considering the entire trial record in light of the Martin factors, we have no doubt “that the jury would have arrived at the same verdict” had the photo not been used. See id., ¶45.

 

Review of unpublished per curium court of appeals decision; case activity

Issue (from state’s petition for review)

Whether, if it was error for the trial court to prevent a defense witness from testifying about particular facts relevant to the defense, the error was harmless.

Hunt was charged with child sexual assault and causing a child to view a depiction of sexual activity, the latter charge based on an alleged video on Hunt’s cell phone showing a man and woman having intercourse. (¶2). The trial was a credibility battle, as Hunt testified and denied the allegations. (¶3). Hunt also called a witness named Venske to testify that he sent Hunt two images the victim had seen that were not sexually explicit conduct, and to deny that he ever sent Hunt a sexually explicit video. The trial court excluded Venske’s testimony that he’d never sent the video on the grounds that the source of the video was irrelevant. (¶4). The jury acquitted him of the sexual assault but convicted on the sexual activity charge. (¶5).

In the court of appeals the state did not dispute that the trial court’s ruling was erroneous, but argued it was harmless, primarily because a detective testified that he talked to Venske, who told him he had not sent a video to Hunt. (¶¶10-11). That argument prominently ignores the fact that the judge instructed the jury it could not consider the police officer’s testimony about Venske’s statements for the truth of what Venske was saying, but only for understanding the conversation between the police and Venske–which, the court of appeals noted, only served to highlight the lack of Venske’s testimony  on the matter. (¶13). Thus, the court of appeals held the error wasn’t harmless and ordered a new trial.

So, the court of appeals finds a concededly erroneous exclusion of relevant defense evidence was not harmless. In reaching its decision it applied well-established standards for deciding harmless error. No novel issues of statewide concern appear to be raised in the case. Yet the state petitions for review–and its petition is granted. One might ask, Why? Not because the case meets any of the usual criteria for granting review under § 809.62(1r), for the state concedes it doesn’t. Not because it presents an issue appropriate for the court’s law development function, State v. Mosley, 102 Wis. 2d 636, 665-66, 307 N.W.2d 200 (1980), for again the state concedes that is not the case. What’s left? “[A] substantial question” about the correctness of the court of appeals decision provides a “substantial and compelling reason” for review, the state claims, citing § 809.62(2)(c), and suggesting that review will provide guidance for applying harmless error standards–though the petition doesn’t (and can’t) point to any particular way in which the court of appeals went off the rails in applying the longstanding test. And, of course, this is a case involving “exploiting a child by causing the child to view sexual activity,” and the court of appeals decision “resulted in the reversal of a serious felony conviction.” In short, the supreme court is acting as an error-correcting court because the state believes the court of appeals reached the wrong result; consequently, the supreme court’s decision is likely to have little, if any, effect on the law, though it could have an enormous impact on Hunt.

Review of unpublished per curiam court of appeals decision; case activity

Issues (composed by On Point)

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?

The usual caveat applies to this statement of the issues: Petitions for review are not available on the court’s website, so these issues are On Point’s attempt to ferret out the reason for the grant. While the second and third issues were the focus of the court of appeals decision in the case, they hardly seem grant-worthy by themselves. The meatier issue is the first one, and assuming that is the issue that got the supreme court’s attention, this case will be an interesting and important one for lawyers handling cases in which the state charges a juvenile in adult court using the original jurisdiction provisions under § 938.183.

The first issue was raised by Toliver in his reply brief (after a change in appellate counsel). That caused the court of appeal to refuse to consider it. (¶29 n.5). But the court’s footnote inadequately describes the gravamen of Toliver’s argument. The note simply says Toliver argues the court failed to comply with § 970.032, but fails to add that Toliver contends this failure deprived the adult court of jurisdiction (or, at least, competency to act). Why does that matter? First, Toliver didn’t bring the matter up for the first time out of thin air; he was responding to the state’s argument that, by pleading guilty in adult court, he waived the right to challenge whether he was properly convicted and sentenced in that Court. State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). Second, and more fundamentally, jurisdictional challenges can’t be waived. Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980). (Competency challenges can be, however. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶30, 273 Wis.2d 76, 681 N.W.2d 190.)

The heart of Toliver’s argument is that he was a juvenile (age 16) when charged, and § 970.032(1) expressly requires the court find that probable cause of the specific felony of attempted first-degree intentional homicide (or one of the other felonies enumerated under that statute) exists. Further, the court must do so at the preliminary hearing stage in order to retain subject matter jurisdiction over the case. Because the circuit court in Toliver’s case did not make this finding, he argues it lost jurisdiction. The supreme court itself has said that statute requires the court to determine whether there is probable cause to believe that the juvenile has committed “the violation” of which he or she is accused in the criminal complaint “to assure that the criminal court has ‘exclusive original jurisdiction’ of the juvenile by virtue of the juvenile’s probable violation of one of the offenses enumerated in Wis. Stat. §§ 938.183(1)(a), (am), (ar), (b), or (c),” and that failure to make that finding requires the adult court to order the juvenile be discharged (though he can be charged in juvenile court). State v. Kleser, 2010 WI 88, ¶57, 328 Wis.2d 42, 786 N.W.2d 144.

There’s an obvious tension between this language from Kleser and Mikrut, ¶¶8-9, which says that jurisdiction is conferred not by act of the legislature, but by the Constitution, and that because the circuit court’s subject matter jurisdiction is plenary and constitutionally-based, noncompliance with a statutory mandate pertaining to the invocation of jurisdiction is not itself “jurisdictional” and does not negate the court’s jurisdiction. The court’s resolution of the tension could have a significant impact on juveniles charged as adults, so stay tuned.