On Point

Review of unpublished court of appeals decision; case activity

Issues (from the Petition for Review):

1.  Where a defendant has entered a plea of not guilty by reason of mental disease or defect, may a court summarily refuse to hold a jury trial on the defense if it determines that the defendant will not present sufficient evidence to create a jury question?

2. Did the court of appeals err in holding any error harmless where we do not know precisely what Mr. Magett’s testimony would have been because he was not allowed to testify?

The first issue requires elaboration of the holding in State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1984), that a trial court may direct a verdict against a defendant in the second phase of an NGI trial. Ordinarily, a directed verdict comes after the presentation of evidence by the party with the burden of proof (the defendant in the second phase of an NGI case, Wis. Stat. § 971.15(3)), and that’s what happened in Leach, 124 Wis. 2d at 656-68. The judge in this case, though, didn’t allow Magett to put on evidence in the second phase. Instead, after asking defense counsel what evidence she would put on, the judge “dismissed” the NGI claim because he decided the evidence described by counsel didn’t provide a basis to find Magett had a mental disease or defect. Magett didn’t have an expert to call, but no matter: Leach, 124 Wis. 2d at 666, makes it clear an expert isn’t required; what Leach doesn’t specifically address is the propriety of dismissal before any evidence is presented. This case will settle that question—and may mean NGI cases will see more motions to dismiss or direct a verdict.

The second issue arises because, rather than deciding what is allowed under Leach, the court of appeals assumed the trial court erred and then declared the error harmless. In a way this approach just repeats the trial court’s error of deciding the proposed evidence as described by defense counsel would not have convinced a reasonable jury Magett had a mental disease or defect. It’s not clear whether the supreme court is going to use this case to say something new about the harmless error test or to talk about the propriety of the court of appeals’ assuming error and finding it harmless. Clearly, though, the  primary issue in this case is the propriety of dismissing an NGI without taking any evidence.

Racine County v. Kimberly M.K. and Jessie R.R., 2012AP1346, District 2, 2/21/13; court of appeals decision (1-judge, ineligible for publication); case activity

TPR – injunction terminating visitation during proceedings

An injunction prohibiting visitation is authorized in involuntary TPR proceedings if the prohibition is in the best interests of the child. Wis. Stat. § 48.42(1m)(c). Section 48.42 does not define “best interests,” but case law establishes that there must be a showing of a risk of harm to the child before terminating parent-child visitation. Dane Cnty. DHS v. Ponn P., 2005 WI 32, 279 Wis. 2d 169, 694 N.W.2d 344. Here, the court considered the “best interest” factors set forth in Wis. Stat. § 48.426 at the injunction hearing; it that was error, it was harmless:

¶13      …. The court’s discussion of Jessie’s lengthy struggle with his addiction to marijuana and his failure to maintain an appropriate residence where Makayla could visit makes clear that the risk of harm to Makayla was integral to the court’s analysis. The agency removed Makayla from her parents’ care in the first place due to the harmful situations to which Makayla was exposed. See Ponn P., 279 Wis. 2d 169, ¶¶30-31. The risk of harm to Makayla was clearly the premise of the court’s prohibition on visitation, and any error in considering the factors in § 48.426 was harmless.

Further, any error arising in the delay in holding a hearing on the initial ex parte injunction was waived because Jessie never objected to the delay; nor was the delay prejudicial, as it did not affect Jessie’s substantive interests because Jessie never proved that he could provide a safe home for Makayla to live in, or even visit, and failed to meet the conditions set by the court. (¶14).

TPR – withdrawal of admission to grounds

¶15      …[W]e reject Jessie’s request to withdraw his admission that grounds for termination existed. The record amply supports both the grounds for termination, as already described, and that Jessie’s waiver was knowing, voluntary, and intelligent. Jessie’s trial lawyer testified in the postdisposition hearing about his discussions with Jessie of the precise difference between the two phases of TPR proceedings and of the benefit of conceding the grounds and buying time to attempt to improve his situation enough to persuade the court to allow him to keep Makayla. We accept the circuit court’s finding that Jessie’s postdisposition testimony that he did not understand what he was doing when he waived the phase-one hearing lacked credibility. The fact that the strategy Jessie chose to follow failed does not provide grounds to withdraw his waiver of the phase-one trial.

State v. Ryan L. Kohlhoff, 2012AP1144-CR, 2/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Plea withdrawal – information about collateral consequences of plea

Plea colloquy telling Kohlhoff that, if he pled no contest to a misdemeanor crime involving domestic violence, he would “lose [his] right to carry a firearm under federal law” accurately informed Kohlhoff of the collateral consequences of his plea, so Kohlhoff is not entitled to plea withdrawal. The court rejects Kohlhoff’s argument that the court should have conveyed he would lose his right not only to “carry” a firearm but to “possess” a firearm, because “possess” signifies “a complete prohibition on firearm ownership and use” while “carry” does not; thus, Kohlhoff claims, the colloquy did not inform him that he was relinquishing his right to “use firearms for hunting purposes.” (¶¶5-9).

¶8        We acknowledge that the court was imprecise in its language and should have informed Kohlhoff that the federal firearm prohibition is not limited to the carrying of firearms but includes the possession of firearms. However, we do not see any significant difference between the terms “carry” and “possess” in the context of this case. To “carry” a firearm is generally understood to mean “to go armed with” a firearm. See, e.g., Wis. Stat. § 175.60(1)(ag). To “possess” a firearm is generally understood to mean having actual control of a firearm. See, e.g., State v. Black, 2001 WI 31, ¶19, 242 Wis. 2d 126, 624 N.W.2d 363. Kohlhoff’s complaint on appeal is that the court did not inform him that by entering a plea he would lose the right to “own and use firearms for hunting purposes.” What Kohlhoff complains about is that he cannot “go armed with” a firearm for hunting purposes, and the court clearly explained to him that by entering a plea he would lose the right to “go armed with” a firearm. Because it is impossible to hunt without “going armed with” a firearm, we reject Kohlhoff’s contention that the colloquy was defective because the court failed to inform him that he would be prohibited from “us[ing] firearms for hunting purposes.”

The court also rejects the claim the trial court failed to inform Kohlhoff that the firearm prohibition encompasses a lifetime ban on possession of all firearms and ammunition in the entire country because there is no authority requiring a court to provide that information if it decides to advise a defendant of the federal firearm prohibition. (¶10).

The trial court was not required to inform Kohlhoff about the federal firearm prohibition at all because it is a collateral consequence of entering a plea to a misdemeanor crime involving domestic violence. State v. Kosina, 226 Wis. 2d 482, 486-89, 595 N.W.2d 464 (Ct. App. 1999). But once the court decided to give that information, it was required to provide accurate information. State v. Brown, 2004 WI App 179, ¶8, 276 Wis. 2d 559, 687 N.W.2d 543. So as the court notes, “[t]he dispute boils down to whether the court misinformed Kohlhoff about the nature and scope of the federal firearm prohibition in the context of this case.” (¶7). If Kohlhoff misunderstood “carry” to exclude “using for hunting,” that misunderstanding was apparently his own inaccurate interpretation the court’s statement, not a result of a misleading statement made by the court, and so has no claim for relief. State v. Rodriguez, 221 Wis. 2d 487, 495-99, 585 N.W.2d 701 (Ct. App. 1998).

Postconviction motion – failure to allege sufficient material facts

Kohlhoff alleged that counsel was ineffective because he was not aware that cases like Kohlhoff’s were routinely handled with deferred prosecution agreements and, had counsel “known to ask for such a disposition, it most likely would have been granted.” The court finds this allegation conclusory as it fails to allege sufficient facts as to why he believes that a deferred prosecution agreement would have been offered or entered into by the prosecutor; “[n]otably, Kohlhoff alleges no facts to suggest that the prosecutor ever entertained the idea of entering into a deferred prosecution agreement.” (¶19). Thus, he was not entitled to a Machner hearing on this claim.

State v. Amanda Kratochwill, 2012AP2076-CR, District 4, 2/14/13; court of appeals decision (1-judge; ineligible for publication); case activity

Police  had probable cause to arrest Kratochwill for OWI where:

• Car was stopped for speeding (¶2);
• Upon  approaching the car the officer noted a strong smell of intoxicants and an open beer in the front passenger cup holder (¶2);
• When told she was speeding, Kratochwill did not provide a response, but looked nervous and had glassy eyes and “a strong odor of intoxicants emanating from her person” (¶3);
• Kratochwill said she had consumed three to four beers in a five-hour span (¶5);
• Kratochwill was given field sobriety tests—namely, the horizontal-gaze-nystagmus (HGN), walk-and-turn, and one-leg-stand tests—and the officer observed six out of six clues on the HGN test, one out of eight clues on the walk-and-turn test, and two out of four clues during the one-leg-stand test (¶6); and
• Two preliminary breath tests resulted in a reading of 0.175 (¶7).

Kratochwill’s attack on the officer’s purported “deviation” from his training about the HGN clues is rejected as both not a deviation at all (¶13) and as unimportant because even without her field sobriety test performance there was probable cause to arrest. (¶14).

State v. Heather Tollefson, 2012AP1641-CR, District 4, 2/14/13; court of appeals decision (1-judge; ineligible for publication); case activity

A police officer had probable cause to stop Tollefson for failing to fully stop for a flashing red traffic light. The officer saw a red vehicle approach an intersection with flashing red lights in each direction. (¶3). A gray vehicle followed behind the red vehicle. (¶3). The red vehicle stopped before going through the intersection; the gray vehicle followed the red vehicle without stopping. (¶3). The officer stopped the gray vehicle, which was driven by Tollefson, who was intoxicated. (¶3).

Under Wis. Stat. § 346.39(1) a vehicle approaching a flashing red traffic light “shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed is subject to the rules applicable after making a stop at a stop sign.” (¶9). The stop sign statute, Wis. Stat. § 346.46(1) and (2)(a), provides that if there is a clearly marked stop line, the operator shall stop the vehicle immediately before crossing such line. (¶9). While the officer testified he was unsure whether Tollefson stopped behind the red vehicle and where the red vehicle stopped in relation to the limit line, the circuit court found Tollefson followed the red vehicle through the intersection without stopping immediately before “entering the nearest crosswalk at an intersection or at a limit line when marked” as required by § 346.39(1). (¶5). The circuit court’s inference that Tollefson followed the red vehicle through the intersection without stopping is based on credible evidence and not clearly erroneous. Thus, the officer had probable cause to believe a traffic violation occurred. (¶¶10-11).

City of Oshkosh v. Eric Carley, 2012AP2043, District 2, 2/13/13; court of appeals decision (1-judge; ineligible for publication); case activity

Police officer had probable cause to stop Carley after he saw Carley drive in the left lane to go around a turning vehicle, but did so within several car lengths of oncoming traffic before moving back into the right lane. (¶2). The officer’s observations gave him probable cause to stop Carley because he had reason to believe Carley had violated Wis. Stat. § 346.05(1) and (1)(b), which provides that “the operator of a vehicle shall drive on the right half of the roadway … except … [w]hen overtaking and passing under circumstances in which the rules relating to overtaking and passing permit or require driving on the left half of the roadway”; and Wis. Stat. § 346.09, which prohibits driving to the left of center in overtaking another vehicle unless the left lane is “free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be done in safety.” (¶¶6-7).

State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity

The police lacked probable cause to arrest Cervantes when he opened the door of his apartment (¶¶10-16); there were neither exigent circumstances nor community caretaker grounds for the police to enter Cervantes’s apartment following his arrest to do a protective sweep (¶¶14-23); and his subsequent “consent” to search the apartment was not sufficiently attenuated from the illegal arrest and entries (¶¶24-30). Consequently, the court holds the evidence found during the search must be suppressed.

This case involves the application of well-established Fourth Amendment principles to the facts of this case, so the result is highly dependent on the facts. Given that the court of appeals rejected every justification for the search thrown up by the state, the decision is worth a few minutes’ reading as a lesson on  some of the many ways a search or seizure can be unlawful.

The basic facts are these: Tenants of an apartment building complained to a building manager that Cervantes, also a tenant in the building, had been walking around with a shotgun yelling and cursing at others; the building manager passed that information onto a security guard, who relayed it to the police. (¶2). Two plainclothes and five uniformed police officers went to Cervantes’s apartment and—without first talking with the building manager or any of the complaining tenants—knocked on the door; when Cervantes opened the door after an initial delay, the police grabbed him, pulled him into the hallway, and handcuffed him. (¶3). The uniformed officers then swept the apartment. After finding no one inside, they took Cervantes back into the apartment and asked him if he had any guns. Cervantes said “no.” With the five uniformed police in the room Cervantes was twice asked for consent to search the apartment; mirabile dictu, he consented. (¶4). The police found no guns, but they did find two large baggies of marijuana. (¶4).

The court’s conclusions are summed up nicely in its discussion of the factors used to decide whether Cervantes’s consent to search was tainted by the previous initial illegalities:

¶30      …. While there is no doubt that the officers believed their actions were appropriate, as we have seen, the seizure and arrest of Cervantes upon his opening his door, failing to immediately answer a question and taking a step backward, was not reasonable. This situation was further aggravated when the police swept his apartment after he was arrested. Consequently, the police violated Cervantes’ constitutional rights more than once. He was illegally seized and arrested, and the police unlawfully entered his apartment twice.