On Point

State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate

Issue/Holding: Defendant not entitled to request substitution of judge assigned to sentencing following revocation; § 971.20(5) is limited to pre-guilt phases:

¶14   We conclude that the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved, a criminal “trial” is complete for purposes of this statute. Section 971.20(5) did not provide authority for Wisth to seek a substitution prior to his sentencing after revocation. Therefore, we affirm the judgment.

Relatively detailed discussion of statutory history, ¶¶10-13, supporting “legislative intent to limit substitutions of newly assigned judges to requests prior to trial.”

State v. Colin G. Schloegel, 2009 WI App 85
For Schloegel: Sarvan Singh

Issue/Holding¹: School grounds are extended to the school parking lot, so that the test for searches of students, New Jersey v. T.L.O., 469 U.S. 325 (1985), applies to search of a student’s car parked in the lot, ¶¶15-19.

Issue/Holding²: Search of student’s car in school parking lot was reasonable:

¶21      In this case, application of the T.L.O. two-prong test to the record facts leads to the conclusion that (1) the search was “justified at its inception,” and (2) the search of Schloegel’s car was “reasonably related in scope to” the search of contraband. See T.L.O., 469 U.S. at 341. The search was justified at its inception because school officials were put on alert that Schloegel was in possession that day of drugs, including pills and possibly some other substances. School officials must act on such a tip. “School officials not only educate students who are compelled to attend school, but they have a responsibility to protect those students and their teachers from behavior that threatens their safety and the integrity of the learning process.” Angelia D.B., 211 Wis. 2d at 157. Furthermore, Schloegel had a prior drug arrest on record, and Rudolph knew him from that previous arrest. Therefore, the decision to investigate further, and to search for contraband was reasonable at its inception. See, e.g., J.D. v. State, 920 So.2d 117, 122 (Fla. Ct. App. 2006) (holding that “[w]hen school authorities receive information, whether verified or not, involving illegal activities occurring on their campus, calling the suspect student out of class to investigate the report is a reasonable and minimal step in that investigation.”).

¶22      We also conclude that the search was reasonable in scope. Students who decide to bring drugs to school have many places to stash them, and the stated purpose and clear goal of this search was to discover whether Schloegel had contraband at school. A school official has the responsibility to keep students safe on school grounds, and as we have indicated, this includes school parking lots. When searches of Schloegel’s person, backpack and locker were cleared, it was a reasonable next step for school officials to take the search to Schloegel’s car.

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding:

¶29      We will assume, for purposes of Patterson’s argument, that the definition of “juvenile” in Wis. Stat. § 938.02 applies for purposes of defining “delinquency” in Wis. Stat. § 948.40. Nonetheless, Patterson’s statutory analysis ignores the fact that a seventeen-year-old is only excepted from the definition of “juvenile” for a single purpose, the “purpose[] of investigating or prosecuting” the “person who is less than 18 years of age.”See § 938.02(10m). Here, the question is not whether Tanya S. is a “juvenile” for purposes of prosecuting her, but instead for purposes of prosecuting Patterson. Thus, Tanya S. was a “juvenile” for purposes of Patterson’s prosecution for contributing to the delinquency of a child with death as a consequence. ^[12]

State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe

Issue/Holding:

¶25      There is no dispute that testing revealed that Tanya S. had Oxycodone in her system at the relevant time. However, as Patterson argues, the presence of drugs in someone’s system, standing alone, is not sufficient evidence to support a conviction for possession of a controlled substance. SeeState v. Griffin, 220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. App. 1998). “Possession” in this context requires evidence that the individual had a substance in his or her control. See id. at 381 (citing Wis JI—Criminal 920). Still, as we explained in Griffin, “‘when combined with other corroborating evidence of sufficient probative value, evidence of [ingestion] can be sufficient to prove possession.’” Griffin, 220 Wis. 2d at 381 (citation omitted). That is the situation here.

Various witnesses saw Patterson give Oxycodone to Tanya S., ¶26.

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding:

¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous, he should have known about it and lays the blame at counsel’s feet. These are all facts, which if true, would entitle him to relief. The trial court rejected the call for a hearing by deciding that the agreement was not ambiguous. We have already held otherwise. This leaves many facts to be parceled out and they can come out at a Machner hearing only. We reverse and remand with directions that the trial court conduct a Machner hearing. At this hearing, should Wesley decide to testify about whether he knowingly and intelligently understood the terms of the plea agreement, the court shall make findings of fact regarding this issue as well as any ineffective assistance of counsel claims before the court.¶25      We also point out that there is another question that the parties must flesh out on remand. The law in Wisconsin is that “[a]greements by … prosecutors … not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.” Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976). Whether the State was merely providing pertinent and relevant information or went beyond it by using it to augment its argument in favor of incarceration is a question to be decided on remand. This question will come into play with respect to the ineffective assistance of counsel claims. It is up to the parties, and ultimately the trial court, to measure the extent by which the policy impacts the result.

This is an exceptionally readable opinion, a genuine pleasure to read, but the court inexplicably stumbles a bit just before the finish line. Most significantly: the court acknowledges that Wesley may well be entitled “to relief,” but simply does not say explicitly what form of relief he’s eligible for. Presumably, it’s like this: notwithstanding ambiguity in the provision, if Wesley reasonably thought it meant no-allocution, then his reasonable assumption will be enforceable at a resentencing; nonetheless, if the provision is deemed, per Grant, violative of public policy, then the court may not enforce it and the remedy necessarily would be limited to plea-withdrawal. To be sure, the court doesn’t spell any of this out, but that seems to be what the court is driving at. Grant is, as the quote indicates, clear enough about unenforceability, but it expressly avoided the question of plea-withdrawal, 73 Wis. 2d at 447. However, a federal habeas court subsequently ordered plea-withdrawal, Grant v. Wisconsin, 450 F. Supp. 575 (E.D. Wis. 1978).

One last thing, totally tangential: spell-check can be your best friend or your worst enemy (“The State then explained that the witness lost site of the vehicle,” ¶5).

State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Notwithstanding “irregularities” with respect to the burden of proof, the hearing on Hoppe’s Bangert challenge established that his plea was knowing and voluntary, given “the circuit court’s findings … that the circuit court disbelieved the defendant’s claims that he did not receive and did not understand the information that was provided in the Plea Questionnaire/Waiver of Rights Form but that was not provided to the defendant during the plea colloquy,” ¶¶46-58.

These findings also doom Hoppe’s Nelson-Bentley claim for plea-withdrawal, which involves issues similar to his Bangert claim (knowledge of maximum penalties, rights waived, import of read-ins, counsel’s unpreparedness), ¶¶59-66. Roughly put, Bangert deals with an “intrinsically” bad plea colloquy and the State has the burden of proving that the plea was nonetheless valid; and Nelson-Bentley deals with problems “extrinsic” to the plea colloquy, so that the defendant has the burden of proving up these problems. Detailed discussion in the opinion.

Clay Teasdale v. Marinette County Child Support Agency, 2009 WI App 152

Issue/Holding: Case specialist’s request to judge via affidavit and proposed order for remedial-contempt commitment was in fact if not form a “motion” and “was improper on numerous grounds”: it violated the §802.05(1) requirement that aside from pro se litigation motions must be signed by an attorney else must “be stricken”; it wasn’t filed with the clerk of circuit court, contrary to § 801.16(1); it violated the proscription against ex parte communications; and, it failed to afford the 5-days’ minimum notice required by § 801.15(4).

Minor point, perhaps: the court notes Teasdale’s argument that, because the request was signed by a nonattorney, the trial court lacked competency to issue the order, ¶1, but the court never quite gets around to saying whether or not it agrees. The court, to be sure, clearly says “the child support agency’s request for a commitment order should have been stricken from the record,” id., but whether that outcome equates to a lack of competency is left to the reader’s determination. The court is clear, though, about the necessity of notice:

¶11      Further, motions “shall” be heard on a minimum of five days’ notice. Wis. Stat. § 801.15(4). Yet, here the agency’s request for a commitment order was granted the day after its submission. A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions. V.J.H., 163 Wis.  2d at 838, 842-44 (“When a contemnor’s liberty interests are at risk he or she must be given the opportunity to show the court that the failure to comply with the purge condition was not willful and intentional.”). Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued. ^[7] In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned. ^[8]