We are fast approaching the end of the 2012-2013 term for SCOW and SCOTUS. If you are wondering which defense-related cases and issues have yet to be decided, see On Point’s list below. Remember, SCOW typically releases its last decision in mid to late July. The calendar to your right will show release dates as soon as they are available. SCOTUS usually releases its last decision by the end of June. Prepare for a plethora of posts!
Still Pending in SCOW:
State v. Sobczak, 2010AP3034-CR
Issue: Whether Sobczak’s girlfriend, a non-resident guest in his parents’ home, had authority to consent to police entry into the home and to search and seizure of Sobczak’s laptop.
State v. Neumann, Appeal No. 2011AP1044-CR/2011AP1105-CR
Issues: (1) Whether the “faith healing” defense in § 948.03(6) is limited to prosecutions for child abuse or extends to reckless homicide, § 940.06(1).
(2) Whether the interplay of this defense with reckless homicide for failing to obtain medical treatment deprived the Neumanns of sufficient notice as to when parental choice of prayer treatment became illegal.
(3) Whether (assuming the defense applicable to a homicide prosecution) the instructions adequately conveyed the faith healing (or, prayer treatment) defense.
State v. Starks, 2010AP425
Issue: Whether, following unsuccessful direct appeal, a motion raising a “non-constitutional” issue (propriety of DNA surcharge) operates as a “serial litigation” bar such that a subsequent § 974.06 motion alleging ineffective assistance of counsel is procedurally barred.
State v. Burton, 2011AP450
Issues: (1) Whether Burton is entitled to a Machner hearing on his postconviction motion asserting that counsel was ineffective for failing to advise that Burton could pursue a bifurcated (NGI) plea along with his guilty plea, and have a jury determine whether he was not responsible by reason of mental disease or defect.
(2) Whether the plea colloquy was defective because the trial court failed to advise that Burton could plead guilty and still have a jury determine the issue of sanity.
State v. Steffes, 2011AP691-CR
Issues: (1) Whether the evidence is sufficient to sustain conviction for conspiracy-theft by fraud, in that: no conspirator expressly made a false representation; and in any event, Steffes joined the conspiracy after it had already been set in motion.
(2) Whether the evidence is sufficient to sustain conviction for a felony, in that the evidence failed to establish theft of at least $2,500.
(3) Whether sentencing court reliance on Steffes’ alleged participation in a scheme (identity theft) for which the jury acquitted him violated his right to a sentence based on accurate information.
State v. Sahs, 2009AP2916-CR
Issue: Whether Sahs’ statements to his probation agent, along with evidence derived from those statements, were suppressible under the “Evans-Thompson” rule, which holds that a probationer’s statements which are compelled by the terms of probation – provide information to an agent when requested or face revocation – are covered by use- and derivative-immunity.
State v. Johnson, 2011AP2864-CRAC
Issues: (1) Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records.
(2) Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony.
Manitowoc County v. Samuel J.H., 2012AP665
Issue: Whether our holding in Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶¶26, 28, 267 Wis. 2d 739, 672 N.W.2d 88, that “Wisconsin Stat. § 51.35(1)(e) mandates that a patient transferred to a more restrictive environment receive a hearing within ten days of said transfer,” is contrary to the plain language of the statute. We certify to the supreme court for its determination as to whether § 51.35(1)(e) mandates a hearing within ten days for all transferred patients, including those transferred for medical reasons under § 51.35(1)(e)1., or whether the mandate applies only to those transferred due to a violation of the conditions of outpatient placement as set forth in § 51.35(1)(e)2.-5.
Outagamie County v. Melanie L., 2012AP99
Issue: Whether the county adequately proved that Melanie L. is incompetent to exercise informed consent, in that: the county’s expert testified that she was incapable of applying an understanding “to her advantage” instead of “to … her mental illness … in order to make an informed choice” (§ 51.61(1)(g)4.b.); and she recognizes she is mentally ill and needs medication, and was taking a psychotropic medication at her own request.
Village of Elm Grove v. Brefka, 2011AP2888
Issue: Whether the municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearing under Wis. Stat. § 343.305.
State v. Melton, 2011AP1770-CR/2011AP1771-CR
Issue: Whether a circuit court has inherent authority to order destruction of a presentence investigation report (albeit under “unique facts”), after sentencing and entry of judgment.
State v. Alexander, 2011AP394-CR
Issues: (1) Whether the non-waivable nature of the defendant’s right to personal presence at voir dire, citing, § 971.04(1)(c); State v. Harris, 229 Wis. 2d 832, 839, 601 N.W.2d 682 (Ct. App. 1999), extends to examination of a juror for possible dismissal following selection and swearing-in.
(2) Whether the trial court properly dismissed two jurors, notwithstanding their declarations of impartiality, in that one expressed concerned about “revenge” by a someone the juror thought connected to the case, and the other knew an important witness for the defense.
(3) Whether trial counsel provided ineffective assistance by giving the State notes of an investigator’s interview with the primary alibi witness and by asking that witness whether his testimony was consistent with what he had told the investigator (thus exposing the witness to impeachment by the State).
(4) Whether Alexander’s request for relief on the ground of newly discovered evidence, namely an affidavit which purported to give an eyewitness account of a shooting committed by someone other than Alexander, provided sufficient detail to support a conclusion that this was in fact the offense Alexander for which was convicted.
State v. Edler, 2011AP2916-CR
Issues: (1) Does the Wisconsin Constitution provide more protection than Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010) (holding that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days)?
(2) Did the defendant invoke his right to counsel unequivocally when he asked “can I have my attorney present for this?”?
(3) If the defendant’s invocation was equivocal, does it make a difference whether the equivocal statement was made before Miranda warnings were given as opposed to afterwards?
Dane County v. Sheila W., 2012AP500
Issues: (1) Does Wisconsin recognize the “mature minor doctrine,” a common law rule providing that a minor may consent or refuse to cosent to medical treatment upon a showing of maturity, intelligence and sufficient understanding of the medical condition and treatment alternatives?
(2) Does Wisconsin recognize a mature adolescent’s due process right to refuse unwanted medical treatment?
(3) Did the circuit court violate an adolescent’s common law and constitutional right to refuse medical treatment when it appointed a temporary guardian to consent to treatment over the adolescent’s objection?
(4) Should the exceptions to the mootness doctrine be utilize to address the above issues?
Still Pending in SCOTUS (courtesy of SCOTUSblog):
Descamps v. United States, 11-9540
Issue: Whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the “modified categorical approach.”
Alleyne v. United States, 11-9335
Issue: Whether the United States supreme Court’s decision in Harris v. United States, holding that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled.
Adoptive Couple v. Baby Girl, 12-399
Issues: (1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law; and (2) whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
Salinas v. Texas, 12-246
Issue: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
United States v. Kebodeaux, 12-418
Issues: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.