On Point

City of Appleton v. Kylie M. Johnson, 2012AP1922, District 3, 2/12/13; court of appeals decision (1-judge, ineligible for publication); case activity

Jurisdiction of court – defects in truancy citation

Defects in an habitual truancy citation did not prevent court from obtaining personal jurisdiction over Johnson before it entered default judgment. She did not appear at the first hearing on the citation, so the court entered a default judgment against her; at the same hearing, however, she was summoned to appear at a future hearing, and when she appeared at the second hearing she was advised of the default judgment. Thus:

¶10      …[W]e conclude that, irrespective of any defects in the citation, Johnson submitted to the court’s jurisdiction by appearing in person without objection at the next hearing.  See Artis-Wergin v. Artis-Wergin, 151 Wis. 2d 445, 452, 444 N.W.2d 750 (Ct. App. 1989).  Although we recognize that personal jurisdiction must exist at the time of entry of judgment, see Heaston v. Austin, 47 Wis. 2d 67, 74-75, 176 N.W.2d 309 (1970), the court appears to have modified its judgment at the hearing where Johnson did appear.  Specifically, the court added a community service requirement in lieu of the forfeiture, and, at subsequent hearings, the court faulted Johnson for failing to complete these required hours.  Because the court had personal jurisdiction over Johnson, the court’s judgment is not void.

Johnson also argued the citation’s defects deprived the court of competency, but she forfeited that claim by not raising that issue in the circuit court. (¶9). Village of Trempealeau v. Mikrut, 2004 WI 79, ¶38, 273 Wis. 2d 76, 681 N.W.2d 190. Jurisdiction, on the other hand, may be raised for the first time on appeal because a judgment entered without jurisdiction is void, and “[a] void judgment cannot be validated by consent, ratification, waiver, or estoppel.”  Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985). (¶9).

Judicial bias

The judge was objectively biased because the record creates the appearance he prejudged the contempt hearing. At the first hearing Johnson attended the court told her that if she violated any of its orders she “could be found, and will be found if the City makes a motion, in contempt of Court.” (¶3). More striking still, at the next hearing, after the City informed the court that it would be filing a contempt motion, the court reviewed  the school records that formed the basis of the subsequent contempt motion and engaged Johnson in a colloquy about why she had missed school. (¶¶4, 14). This record establishes objective bias under State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385:

¶17      …[T]he court considered Johnson’s attendance records and demanded to know why she failed to attend school before any contempt motion was even filed. We conclude a reasonable person would interpret the court’s actions and statements to mean that the court had already decided Johnson violated its order before the contempt hearing. This appearance of partiality reveals a great risk that the court actually did prejudge the contempt hearing; therefore, we conclude the court was objectively biased and the contempt order must be vacated. See Dylan S., 339 Wis. 2d 442, ¶30.

The court of appeals also reaches an issue that, given its reversal of the contempt order due to bias, it need not address. Specifically, the court was “troubled” by the imposition of imprisonment as a remedial sanction. First, the judge’s comments in imposing the sanction implied a punitive intent that is “entirely improper.” (¶¶19-20). Christensen v. Sullivan, 2009 WI 87, ¶55, 320 Wis. 2d 76, 768 N.W.2d 798 (remedial sanctions are “not designed to punish the contemnor, vindicate the court’s authority, or benefit the public” but only to force the contemnor into compliance with the court’s order). Further, the court imposed a purge condition without ensuring that Johnson would in fact be able to satisfy that condition, and a purge condition must be solely within the contemnor’s control. State ex rel. N.A. v. G.S., 156 Wis. 2d 338, 343, 456 N.W.2d 867 (Ct. App. 1990) (purge condition that relied on the affirmative action of another was improper). “Here, the court failed to determine that Johnson herself would be able to complete the purge condition, and Johnson unfortunately ended up serving thirty days of jail.” (¶22).

State v. Gloria C., 2012AP1693 and 2012AP1694, District 1, 2/5/13; court of appeals decision (1-judge, ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to the opinion testimony of the parent’s ongoing case manager, who said that based on the parent’s conduct in the preceding two years, she would not be able to meet the conditions necessary for the return of her children within nine months. The court concludes the case manager was qualified as an expert based on his background, education and experience: He is a licensed social worker with a Bachelor’s degree in the field and had been working as Gloria’s ongoing case manager for over two years, during which he observed that she had been unable to provide stable housing, budget her finances, and make the changes necessary to meet the full-time needs of all her kids. His education and experience with Gloria, therefore, gave him specialized knowledge and expertise as to Gloria C.’s ability to meet the conditions necessary for the return of her children, and his conclusion that it was unlikely she would meet the conditions was rationally based on facts he had observed. (¶11).

The court also notes that Gloria’s case commenced before Rule 907.02 was amended to adopt the so-called Daubert standard, so the amended rule did not apply here. (¶11 n.3). It is not clear the case manager would be an expert who is applying “principles and methods” to the facts under the amended rule, though his opinion might still be admissible lay opinion under Rule 907.01.

The court also concludes that even if trial counsel should have objected to the case manager’s opinion testimony, there is no reasonable probability that the outcome of Gloria C.’s trial would have been different. Not only does the record contain overwhelming evidence supporting the jury’s finding that Gloria C. was unable to meet the conditions of her children’s return within nine months, but the jury also found that Gloria C. failed to assume parental responsibility—a termination ground independent of the continuing CHIPS order. (¶¶12-13).

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.   Lehman raised many unsuccessful claims for postconviction relief, appealed and now loses again.  The two somewhat interesting issues in his case are these:

Ineffective assistance of counsel — showing required for a hearing

Lehman challenged the trial court’s refusal to hold an evidentiary hearing on his ineffective assistance of counsel claims.  The appellate court affirmed because Lehman failed to make the showing required by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) and Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and reinforced by State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433.

First, [courts] determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief.  This is a question of law that [appellate courts] review de novo.  If the motion raises such facts, the circuit court must hold an evidentiary hearing.  However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.

Id., 274 Wis. 2d 568, ¶9 (italics added; citations omitted).

Lehman claimed he would have gone to trial or pled guilty to lesser offenses had trial counsel investigated 4 specific witnesses.  The problem, according to the court of appeals, is that he did not offer an affidavit from any one of the alleged witnesses.  (Slip. op., ¶ 10).  He offered only speculation about what would have happened if the witnesses testified the way he expected.  Not good enough.  The court also rejected one witness’s proposed testimony “offered through an affidavit of postconvcition counsel via an investigator for the public defender’s office.”  (Id., ¶12).    Trial counsel had no memory of the defendant ever mentioning the witness, and the witness’s proposed testimony was weak in light of Lehman’s confession.  No “solid facts” that trial counsel performed deficiently.   No reasonable likelihood Lehman would have proceeded to trial.  Ergo no postconviction motion hearing was necessary.

Sentence modification based on a new factor

The risk reduction statute, Wis. Stat. § 973.031, went into effect several months after Lehman was sentenced.  Lehman claimed this was a new factor warranting modification of his sentence.  The court of appeals, after reciting the new factor test, said “no” because the trial court clearly considered Lehman a “career criminal,” and a serious threat to the public.  Also, rehabilitation had not worked, leaving the trial court no choice but to impose a severe sentence.  Thus, held the court of appeals:  “In these circumstances, the risk reduction statute, which would have resulted in a decreased sentence, was not germane to what the trial court wanted to do.”  (Slip op., ¶24).

Doe v. Prosecutor, Marion County, Indiana, Case No. 12-2512, 1/23/13; Seventh Circuit Court of Appeals decision

A recent Indiana statute prohibits most registered sex offenders from using social networking websites, instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors. (Slip op. at 1-2).

The law prohibits “knowingly or intentionally us[ing]: a social networking web site” or “an instant messaging or chat room program” that “the offender knows allows a person  who is less than eighteen (18) years of age to access or use the web site or program.” Thus, an offender’s lack of knowledge is a defense. So is ceasing use upon discovering minors can use the site or program. The ban applies broadly to individuals required to register as sex offenders, and does not differentiate based on the  age of victim, the manner in which the predicate crime was committed, or the time since the predicate offense. The first violation is a misdemeanor; subsequent violations are felonies.

Wisconsin does not have a similar ban. We do prohibit facilitating the commission of a child sex offense using a computer (Wis. Stat. § 948.075), and sex offenders who have to register must provide DOC with information about their computer accounts, online identities, and password information (Wis. Stat. § 301.45(2)(a)6m). These narrower approaches to dealing with sex offenders’ use of computers are cited by the court (slip op. at 10-11) as examples of appropriate “narrowly tailored” alternatives, and are not invalidated by this ruling. The court also explicitly says (slip op. at 19) that its opinion should not be read to affect the validity of the common practice of sentencing judges to place restrictions on computer use as a condition of probation or extended supervision. As the court notes, “terms of supervised release or parole may offer viable constitutional alternatives to the blanket ban—imposed outside the penal system—in this case” (slip op. at 20).

State v. William G. Bennett, 2012AP1757-CR, District 2, 1/30/13; court of appeals decision (1-judge; ineligible for publication); case activity

Evidence that Bennett sent a lewd and obscene letter to a person was sufficient to support conviction for disorderly conduct because the content of the letter placed it beyond a mere “personal annoyance” to the victim. Purely written speech can constitute disorderly conduct even if that written speech fails to cause an actual disturbance, and certain types of speech—lewd, obscene, profane, and insulting words—by their very nature tend to cause an immediate breach of peace. (¶¶10-11, citing State v. Douglas D., 2001 WI 47, ¶3, 243 Wis. 2d 204, 626 N.W.2d 725, and State v. A.S., 2001 WI 48, ¶15, 243 Wis. 2d 173, 626 N.W.2d 712). Also, conduct that tends to cause a personal or private disturbance may constitute disorderly conduct if there exists the real possibility that this disturbance will spill over and disrupt the peace, order, or safety of the surrounding community. (¶13, citing State v. Schwebke, 2002 WI 55, ¶30, 253 Wis. 2d 1, 644 N.W.2d 666). Applying these standards, the court says:

¶14      We find that the evidence in this case was sufficient to convict Bennett for disorderly conduct.  The letter is—without limitation—obscene, disturbing, threatening, and frightening and has the real possibility of causing a disturbance in the community.  The letter, which also sexually implicated both the victim’s older friend and young granddaughter, was sent unsolicited to a sixty-year-old married woman.  The sexually graphic letter was sent by a known sex offender, whose previous victims included an underage girl and who was serving a lengthy prison sentence for a violent, sexual type of crime.  The letter caused a significant disturbance in the victim and her husband, leading them to successfully seek a restraining order against Bennett.  A reasonable trier of fact could find beyond a reasonable double that, under the circumstances, Bennett’s mailing of the letter tended to provoke a disturbance and constituted disorderly conduct.

State v. James A. Krahn, 2012AP1898-CR, District 2, 1/30/13; court of appeals decision (1-judge, ineligible for publication); case activity

Motion to dismiss second-offense OWI charge was properly denied, where the charge resulted from the state’s successful motion to reopen a conviction for a first offense that had been entered a few weeks after a conviction in another case that was also treated as a first offense:

¶6        Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis. Stat. §§ 343.307 and 346.65(2)(am).  See Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 721-22, 324 N.W.2d 682 (1982).  The orders and judgments of a court acting in excess of its jurisdiction are void and may be expunged by a court at any time.  State v. Banks, 105 Wis. 2d 32, 43, 313 N.W.2d 67 (1981).  Thus, any proceeding that tries a second-time OWI offender as a first-time offender contrary to the mandatory language of the drunk driving statutes is invalid and no jeopardy attaches to the resulting conviction.  See Rohner, 108 Wis. 2d at 722.  Krahn was properly convicted of second-offense OWI.

State v. Richard Wade Shirley, 2012AP263-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

Denial of fair trial – restraint of defendant during trial

Defendant forfeited claim that he was deprived of a fair trial because at least one juror saw he was shackled in the court room: “Not only does the record show that Shirley failed to strike the one juror that the record demonstrates saw the restraints, it also shows that no object to the shackling was raised until Shirley was about to take the witness stand. If a defendant has an objection he must raise it when there is still an opportunity for the court to remedy the situation.” (¶14). Further, Shirley did not show prejudice due to the shackling, as the record indicates only one juror saw the restraints and precautions had been taken to hide the restraints from the jury’s view. (¶15). Finally, the record does not show Shirley’s ability to testify was hampered by his being shackled while on the witness stand. (¶17).

Though Shirley gets no relief, the court of appeals notes the trial judge’s failure to explain why Shirley had to be shackled during trial; instead, the judge just deferred to the policy of the sheriff’s department, contrary to a long line of cases requiring the court to exercise its discretion in deciding whether to restrain a defendant (recent example: State v. Miller, 2011 WI App 34, ¶7, 331 Wis. 2d 732, 797 N.W.2d 528). (¶¶13, 17) .

As for the lack of prejudice, it is true only one potential juror (No. 34) mentioned the shackles during voir dire; but it appears he referred to it in the presence of the rest of the panel. (¶¶3-4). While Juror No. 34 said during individual voir dire that he had not mentioned it to any other jurors, counsel declined to question other jurors about what they had seen—or, more to the point, whether they’d heard Juror No. 34’s reference to the shackles. Finding a lack of prejudice based on what other jurors saw as opposed to heard may, then, be a bit myopic.

Sentencing – reliance on inaccurate information; new factor

A claim the Department of Corrections cannot provide adequate medical care to Shirley, an amputee, is not grounds for either resentencing or a sentence modification because sentencing court did not rely on the quality of prison medical treatment in making its sentencing decision. The standards for resentencing based on inaccurate information (State v Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1) and new factor sentence modifications (State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 823) are cited and applied.