On Point

State v. Maurice C. Hall, 2013AP209-CR, District 1, 10/15/13; court of appeals decision (not recommended for publication); case activity

A competency evaluation found Hall competent to proceed, though his mental health history caused Deborah Collins, the examiner, to “urge court officers to remain sensitive in the event of any significant changes in his overall mental status as such a factor may signal decline in his competency and warrant his reexamination.” (¶3). On the second day of Hall’s trial, counsel informed the court they had reached a plea agreement, but Hall immediately contradicted that statement. (¶4). After defense counsel noted Hall hadn’t received his medication for two days and that his judgment might be affected, the court questioned Hall, who said he could understand what was going on but that the lack of medication was “clouding” his judgment “a little bit” and that “I just don’t know what to do.” (¶5). The judge concluded Hall was struggling to decide whether to accept the plea agreement and therefore couldn’t “knowingly or voluntarily” enter a plea; that left the “default” option of proceeding with the trial, which resulted in Hall’s conviction. (¶6).

Hall argues that if he couldn’t “knowingly or voluntarily” enter a plea he was also not competent to proceed to trial, for the standard for competence to stand trial and competence to enter a guilty plea are the same. Godinez v. Moran, 509 U.S. 389, 402 (1993); Wis. Stat. § 971.13(1). Therefore, the court should have ordered a new competency evaluation instead of proceeding with the trial. (¶¶8-11). The court of appeals disagrees, concluding the record shows the court didn’t find Hall was not competent to proceed, but only that he was unable to decide whether to accept the plea, and that there was no reason to doubt Hall’s competence to stand trial:

¶12   …. Hall gave appropriate, reasoned answers during his colloquy with the trial court; Hall understood the nature of the charges against him; and Hall understood the consequences of both accepting a guilty plea and proceeding to trial. Dr. Collins’s report indicated that Hall was: intent on maintaining his innocence; “disgust[ed]” by the charges against him; aware of his legal options; and competent to stand trial. The trial court considered Dr. Collins’s report in its decision. Indeed, Hall told the trial court that he was adamant about “clear[ing his] name.” Therefore, it stands to reason that Hall’s colloquy with the trial court reflected the difficulty of deciding whether to accept a guilty plea or continue to maintain his innocence. The colloquy did not demonstrate that Hall lacked the capacity to understand his alternatives and their consequences. Hall told the trial court that he was struggling to make the “serious decision” and changed his mind several times, but that his comprehension was intact. The fact that Hall simply could not decide, even with a somewhat “cloud[ed] judgment,” does not, on the record before us, cast doubt on Hall’s competency to proceed to trial.

State v. Lewis Allen Stokes, 2012AP2621-CR, District 1, 10/15/13; court of appeals opinion (1-judge; ineligible for publication); case activity

Probable cause to arrest for OWI was established based on: police observations of Stokes speeding and weaving in and out of traffic without signaling at 11:00 p.m.; Stokes’s slurred speech and the strong odor of alcohol on his breath; and Stokes’s argumentative and combative attitude toward the police. (¶¶4-5, 10). The lack of facts that were present in other cases where probable cause was found does not matter here (¶11); in particular, the lack of a positive field sobriety test does not mean probable cause was lacking, as FSTs are not a prerequisite for establishing probable cause. (¶12). “The question when assessing probable cause is not what additional information the police did not have, but whether the information the police did have was enough to meet the low standard of proof necessary to justify an arrest.” (¶13).

As to FSTs, see, e.g., State v. Kasian, 207 Wis. 2d 611, 622, 558 N.W.2d 687 (Ct. App. 1996) (because the question of probable cause is assessed on a case-by-case basis, “[i]n some cases, the field sobriety tests may be necessary to establish probable cause; in other cases, they may not.”).

State v. Richard H. Hogenson, 2013AP389-CR, District 3, 10/15/13; court of appeals decision (1-judge; ineligible for publication); case activity

Though it is “a very close case” (¶14), the court of appeals holds an officer had reasonable suspicion to extend a traffic stop based on a burned-out headlamp and conduct field sobriety tests:

¶15      In this case, at the moment [Officer] Jenatscheck requested that Hogenson participate in field sobriety tests, Jenatscheck knew he had stopped a vehicle at approximately 10:00 p.m. on a Saturday night. See State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (It is common knowledge “that people tend to drink during the weekend when they do not have to go to work the following morning.”); [State v.] Post, 2007 WI 60, ¶36[, 301 Wis. 2d 1, 733 N.W.2d 634] (time of night, even 9:30 p.m., “lend[s] some further credence” to impairment determination). Jenatscheck also knew there was an odor of intoxicants emanating from Hogenson’s person, Hogenson admitted to consuming alcohol, and Hogenson had difficulties removing his driver’s license from his wallet…. Based on the facts present in this case and the rational inferences derived from these facts, it would be reasonable for Jenatscheck to suspect that, on a weekend night, a person who smelled of intoxicants, admitted to consuming alcohol, and fumbled with his or her wallet was operating while intoxicated.

Hogenson’s trial lawyer apparently challenged only the initial stop, not its extension, so the suppression hearing testimony didn’t cover events after the initial stop, like Hogenson’s fumbling to retrieve his license. That testimony came at trial. Hogenson objects to consideration of trial testimony to resolve the suppression issue, but the court rejects his argument as undeveloped. (¶15 n.5). It is also foreclosed by State v. Griffin, 126 Wis. 2d 183, 198, 376 N.W.2d 62 (Ct. App. 1985) (when reviewing a suppression order, an appellate court is not limited to the suppression hearing record; it may also examine the trial evidence), aff’d, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff’d sub. nom. Griffin v. Wisconsin, 483 U.S. 868 (1987).

State v. Albert A., 2013AP549, District 3, 10/15/13; court of appeals decision (1-judge; ineligible for publication); case activity

Albert sought to stay juvenile sex offender registration under State v. Cesar G., 2004 WI 61, ¶40, 272 Wis. 2d 22, 682 N.W.2d 1, but the circuit court denied the request. The court discounted a psychosexual evaluator’s opinion that Albert was low risk to reoffend because the judge believed the evaluator’s opinion reflected an actuarial assessment of group, not individual, risk. (¶3). The evaluator testified at a postdisposition hearing that he didn’t rely solely on actuarial tools, but also used clinical judgment. (¶¶8-9). The court of appeals concludes the court’s partially inaccurate understanding of the evaluator’s risk assessment was harmless:

¶19     …. The record indicates the circuit court’s concern was not with how Koller [the evaluator] reached his opinion, but with Koller’s ultimate opinion that Albert had a “low risk” of reoffending. The circuit court reasoned “low risk, of course, is not nothing.” The court also considered how the particular facts of this case demonstrated a need for community protection through sex offender registry. There is no reasonable probability that any error concerning how Koller’s opinion was derived contributed to the disposition.

Nor was the circuit court’s decision based on an error of law. At disposition, the court said that Albert could be removed from the registry if he could “show over time there’s no need to stay on the registry” and that “if you go long enough they will take you off the registry if you have no problems.” (¶¶5-6). In fact, the law requires Albert to remain on the registry for 15 years after the termination of the disposition ordered, § 301.45(5)(a)1. or 2., and provides no way for him to “show … there’s no need to stay on” it before the 15 years is up. At the postdisposition hearing the court said its comments were about the 15-year termination rule. (¶10). The court of appeals accepts that explanation, concluding “[i]t is an accurate statement of the law that Albert will be taken of [sic] the registry in fifteen years if he does not commit any more sexual assault offenses.” (¶16).

One might wonder why, if the circuit court knew the law, it didn’t just say Albert could get off the registry in 15 years if he doesn’t reoffend. Vague references to “show over time” and “go long enough” suggest a lack of knowledge that there’s a set time period and evince a belief there’s some procedure available in the indefinite future for showing registration is no longer needed to protect the public.

Also, a procedural note. Albert’s claims about the circuit court’s reliance on inaccurate information rely on State v. Tiepelman, 2006 WI 66, ¶¶2-3, 291 Wis. 2d 179, 717 N.W.2d 1, which holds a criminal defendant is entitled to resentencing if the court actually relied on inaccurate information at sentencing and if the state fails to establish the error was harmless. The court of appeals assumes without deciding that the Tiepelman standard applies to juvenile disposition decisions. (¶14).

The court also rejects Albert’s argument that the circuit court failed to consider all of the relevant factors for staying registration articulated by Cesar G.–in particular, the purposes of the juvenile justice code, Albert’s young age or rehabilitation, and Albert’s progress in treatment. Reviewing the record (¶¶23-25), the court of appeals concludes “the circuit court properly considered the Cesar G. factors, and simply gave more weight to factors that would require Albert to register. That choice was completely within the circuit court’s discretion.” (¶26).

Petitions for Review.  SCOW plans to hold a petitions conference on Monday–a good thing since as of September 30th there were a whopping 331 petitions for review pending.  One was filed as far back as 2009 (2009AP1955), 10 were filed in consolidated cases back in 2010 (2009AP2266 et al.) and 8 were filed in 2012.  The rest landed in the clerk’s office during 2013.  Of those 331 petitions for review, 182 are classified as civil cases and 149 as criminal.  Note though that “civil” cases include petitions for a writ of habeas corpus,  Wis. Stat. § 974.06 motions, and similar filings by pro se by prisoners.  So it is probably fair to say that most of the pending petitions involve criminal law-related issues.

On Point will post Monday’s petition-for-review grants involving indigent defense issues as soon as they are available–hopefully early next week.

SCOWstats.  Sure, SCOW publishes monthly and annual statistical reports about Wisconsin’s courts. Click here.  But they don’t drill down to the stats for each justice or firm.  Lucky for you, SCOWstats does.  To see justice by numbers for the 2012-13 term, visit On Point’s SCOWStats page.  You’ll find some interesting factoids:

• Remember last spring’s debate about whether SCOW’s productivity had declined?  The Journal Sentinel’s PolitiFact page declared the idea nonsense because the SCOW had been deciding 60 some cases for years. Well, the 2012-13 stats are in, and it looks like SCOW decided a mere 44 civil and criminal cases combined (or 46, depending on how you count).  Of those, 8 were 4-3 decisions.

• The justices most likely to agree were Ziegler and Gableman (95% of the time).  The justices least likely to agree were Ziegler and Abrahamson (54%).

• Who authored the most majority opinions last term?  There was a 3-way tie between Justices Bradley, Crooks and Prosser.  But who was the most prolific opinion writer?  No justice came close to C.J. Abrahamson who wrote 23 majority, concurring and dissenting opinions combined.  Justices Ziegler and Prosser tied for a distant second with 16 such opinions.  Justice Crooks came in last with 11.

• Volume is one measure.  Speed is another.  Justices Crooks and Bradley certainly got their majority opinions out promptly.  Between oral argument and the date of filing the opinion, it took them an average of 120 and 127 days respectively.  On the slow end, it took Justice Roggensack an average of 190 days to file her opinions.  Remember, however, if a majority opinion draws a dissent or concurrence, the lag time could be longer through no fault of the majority opinion’s author.  Plus, a campaign might slow things down a bit.

Looking for historical statistics on your favorite justice(s)?  You’ll find them going back through the 2004-05 term on SCOWstats.com.

State v. David J. Lawrence, 2013AP796, District 4, 10/10/13; court of appeals decision (1-judge, ineligible for publication); case activity

The circuit court knew of Lawrence’s mental health diagnoses at sentencing, but after sentencing Lawrence was hospitalized after a psychological breakdown. (¶¶3-4). He requested sentence modification, arguing the court was not aware of all his diagnoses or his medication regimen. (¶5). Assuming that information was a “new factor,” the circuit court gave a reasoned explanation for why it declined to modify the sentence, citing a number of proper factors including the severity of the offense and Lawrence’s history of violent behavior. (¶¶9-10).

State v. Jeffrey G. Vanden Huevel, 2013AP1107-CR, District 3, 10/8/13; court of appeals decision (1-judge; ineligible for publication); case activity

After rolling his car over early one morning Vanden Huevel left the scene of the accident and went back to his cabin. (¶¶1-7). A sheriff’s deputy named Kelley located the cabin and started knocking on a sliding patio door. (¶¶8-9). Kelley could see someone inside and told the person to open the door, or he’d come back with a warrant. (¶9). Vanden Huevel opened the door part way, confirmed his identity, and, in response to Kelley’s question of whether he was injured, said he was fine; he then started to close the sliding door. (¶10). Kelley stuck his arm in the door to keep Vanden Huevel from closing it. (¶11). Vanden Huevel refused Kelley’s requests to complete an accident report or go back to the scene, and told Kelley he was not leaving the cabin and to come back tomorrow. (¶¶11-13). Kelley then told Vanden Huevel he was under arrest for OWI. (¶12).

The court rejects Vanden Huevel’s argument that Kelley lacked probable cause to arrest him for OWI, given that Kelley knew Vanden Heuvel had been in a rollover accident at 3:30 a.m. and had left the scene, had two prior OWI convictions, smelled of alcohol, and had bloodshot eyes and slurred speech. (¶¶28-30). The question, then, is whether Kelley could enter Vanden Huevel’s home without a warrant to arrest him. Warrantless entry to a home to make an arrest is justified if there are exigent circumstances–namely, hot pursuit, a threat to the safety of the subject or others, a risk evidence will be destroyed, or a likelihood the suspect will flee. State v. Ferguson, 2009 WI 50, ¶19, 317 Wis. 2d 586, 767 N.W.2d 187. (¶31). The only possible justification here was destruction of evidence–dissipation of alcohol from Vanden Huevel’s blood–which is what the circuit court relied on in denying Vanden Huevel’s suppression motion. (¶¶16, 32, 37, 41). The court of appeals concludes the record doesn’t support a finding of that exigency:

¶40      When we review what officer Kelley objectively knew at the moment of entry, we agree with Vanden Heuvel that the circuit court’s exigency determination was made without supporting evidence. “The State bears the burden of proving the existence of exigent circumstances.” [State v. Richter, 2000 WI 58,] ¶29[, 235 Wis. 2d 524, 612 N.W.2d 29]. On appeal, the State does not address Vanden Heuvel’s lack of evidence argument. It asserts only that it agrees with the circuit court’s determination that the dissipation of alcohol in Vanden Heuvel’s bloodstream constituted a sufficient exigency. However, the State has not explained why the dissipation of alcohol in this case constituted a sufficient exigency such that it would justify Kelley’s warrantless entry. Although we recognize that alcohol naturally dissipates from the bloodstream, we also observe that test results from blood draws that occur within three hours of any allegedly driving are generally admissible and constitute prima facie evidence of intoxication. See Wis. Stat. § 343.305(5)(d) (“[R]esults of a test administered in accordance with this section are admissible on the issue of whether the person was under the influence of an intoxicant ….  Test results shall be given the effect required under s. 885.235.”); see also Wis. Stat. § 885.235(1g) (Test results are admissible “if … taken within 3 hours after the event to be proved[;]” the results are prima facie evidence the person was under the influence of an intoxicant.). The State has not pointed to any objective facts that indicate time was of the essence when Kelley entered the house. The record does not reveal how much time it took Kelley to find Vanden Heuvel, how much time it would have taken to obtain a warrant, or how much time it would have taken to travel and obtain a blood draw at the hospital.

Because of the lack of objective facts in the record on which to conclude Kelley entered Vanden Heuvel’s house because he reasonably believed that delay in procuring a warrant would risk destruction of evidence, the entry was not justified by an exigent circumstance and, therefore, was illegal. (¶42).

While this case is about warrantless entry into a home, not about a warrantless blood draw, after Missouri v. McNeely, 133 S. Ct. 1552 (2013), the evanescent quality of alcohol in a suspect’s blood is not enough by itself to create an exigency that allows police to perform a blood draw without a warrant. Thus, the analysis in this case–whether there were “any objective facts that indicate time was of the essence”–seemingly applies with equal force to whether there are exigent circumstances justifying a warrantless blood draw.

The state claimed Kelley did not “enter” Vanden Huevel’s home, but the court rejects the argument based on State v. Larson, 2003 WI App 150, 266 Wis. 2d 236, 668 N.W.2d 338, where an officer investigating a possible OWI offense put his foot across the threshold of the doorway after the defendant answered the door, preventing the door from being closed. Just as the officer’s act of planting his foot in the doorway constituted an entry for Fourth Amendment purposes in Larson, ¶¶10-11, so, too, did Kelley’s act of inserting his arm into the cabin, even though he remained outside standing on the porch: “We reject the State’s assertion that the Fourth Amendment warrant requirement is triggered only if the officer crosses the threshold with his foot, as opposed to some other body part.” (¶26).

The court also rejected Vanden Huevel’s argument that he was seized when Kelley said he would come back with a warrant if Vanden Huevel did not open the door. Kelley’s statement made it clear that if Vanden Heuvel chose not to open the door, Kelley would be forced to wait until he obtained a warrant authorizing his entry into the home. “Accordingly, a reasonable person would have believed that he or she was not required to comply with Kelley’s request and could continue to go about his or her business until law enforcement produced a warrant.” State v. Young, 2006 WI 98, ¶18, 294 Wis. 2d 1, 717 N.W.2d 729. (¶¶19-21).