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State v. Gregory K. Nielsen, 2010AP387-CR, review granted 4/12/11

on petition for review of unpublished order; for State Public Defender: Joseph N. Ehmann; for amicus (WACDL): Robert R. Henak; for amicus (Appellate Section, State Bar): Anne B. Kearney; case activity

Issues (formulated by On Point):

Whether counsel is entitled to notice and opportunity to be heard before the court of appeals imposes a monetary or other penalty for an alleged violation of rules of appellate procedure.

Whether the court of appeals’ monetary penalty against appellate counsel, imposed for allegedly submitting an incomplete Appendix is sustainable on the particular facts.

An increasingly recurrent problem: in the course of deciding an appeal, the court of appeals discerns a violation of some or another briefing rule and brings the hammer down on counsel in the form of a fine. Some violations seem more blatant than others while some are, well, in the eye of the beholder. But they all share the same fate, lightning out of a clear blue sky. Must the court of appeals warn you of the fate it is contemplating, and give you a chance to explain, justify, or mitigate your acts before summarily sweeping your wallet clean of loose bills? The court of appeals seems to think that notice and opportunity to be heard are meaningless details. The supreme court will now decide the question.

The case presents a question on the particular facts, beyond the general principle of notice and right to be heard. Counsel raised a challenge to sentencing discretion, and placed in the Appendix that portion off the sentencing pronouncement that seemed relevant to the challenge. Keep in mind that Rule 809.19(2)(a) requires that “The appellant’s brief shall include a short appendix containing, at a minimum, … limited portions of the record essential to an understanding of the issues raised[.]” Counsel’s efforts to comply with the command to make the Appendix “short” netted her the court of appeals’ umbrage and a fine assessed against the SPD. We will see if “short” means “lengthy,” and “limited portions” means “unexpurgated.” We will also, as suggested above, see how “allocution” is defined. Contempt in State v. Kruse: Oliveto v. Circuit Court for Crawford County, 194 Wis.2d 418, 433-34, 533 N.W.2d 819 (1995) (“[T]he allocution requirement essentially provides a check on the heightened potential for abuse posed by the summary contempt power by providing an opportunity for the contemnor to apologize or to defend or explain the contumacious behavior.”).

Docs leading to review: PFR; Resp. to PFR; Amicus (Appellate Section); Amicus (WACDL)

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