On Point

State v. Jerry A. Leister, 2020AP365-CR, District 4, 9/24/20 (1-judge opinion, ineligible for publication); case activity

Leister, charged with intentional mistreatment of animals,  wanted a lawyer but had trouble retaining one.  After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion.  While the circuit court ruled against him, the court of appeals reversed and remanded the case for a new trial.

The State conceded that Leister did not receive the on-the-record colloquy required by State v. Klessig, 211 Wis. 2d 194, 206, 212-213, 564 N.W.2d 716 (1997).  The colloquy must show that the defendant :

(1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him [or her], and (4) was aware of the general range of penalties that could have been imposed on him [or her].” Where a circuit court fails to conduct such a colloquy and the defendant files a motion for postconviction relief, the court must hold an evidentiary hearing to determine whether the waiver was knowing, intelligent, and voluntary. At such a hearing, the burden falls on the State to overcome the presumption of non-waiver by proving by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily  waived his or her constitutional right to counsel. Id. If the State fails to meet its burden, the defendant “is entitled to a new trial.” Opinion, ¶12 (quoting Klessig).

Despite the circuit court’s failure to conduct this colloquy before trial, the State had a second chance to prove a knowing, intelligent, and voluntary waiver at a postconviction evidentiary hearing, where it bore the burden of proof. But it did not offer any evidence at all. It simply argued that Leister had represented himself in other cases and pointed out that he had obtained an acquittal on one of his charges. This information is not relevant to the Klessig analysis. That’s one reason the court of appeals reversed. Opinion, ¶17.

The other reason is that the State’s appellate brief did not cite to the record or to supporting legal authority. The State’s entire response brief was just 2.5 pages long The court of appeals refused to develop the State’s arguments for it and so reversed based on Klessig and remanded the case for a new trial. Opinion, ¶¶19-20.

Brown County Human Services v. T.F., 2020AP793, 9/22/20, District 3 (1-judge opinion, illegible for publication); case activity

To establish grounds for terminating T.F.’s parental rights, the Department sought to prove that she had abandoned her daughter, Allie, for period of 6 months or longer. It filed a successful motion in limine seeking to exclude evidence of T.F.’s communications and visits with her daughter occurring after it filed its TPR petition. The court of appeals held that the circuit court erred in excluding this evidence. It reversed and remanded the case for a new jury trial on grounds for the TPR. [continue reading…]

N.M. v. State, 2020AP964, case activity; and State v. J.M.W., 2020AP1057, 9/22/20, case activity, District 1 (i-judge opinions, ineligible for publication)

Anyone who loves an alcoholic parent will find this decision heart-wrenching. J.M.W. has a close relationship with her 11 year old daughter, N.M. Unfortunately, J.M.W. also struggles with alcoholism and unstable housing, so the circuit court terminated her parental rights. Both mother and daughter appealed and challenged the circuit court’s “best interests of the child” analysis. In two overlapping decisions, the court of appeals called this a “difficult” case, but nevertheless affirmed. [continue reading…]

State v. Alan M. Johnson, 2018AP2318-CR, review of published opinion granted 9/16/20; case activity (including briefs)

Issues for review (from the State’s Petition)

1. Was Johnson entitled to a jury instruction for perfect self-defense based on his testimony concerning his motivation for trespassing with a loaded firearm in KM’s house, despite the fact that KM was unarmed, shot five times, and Johnson could not recall anything about the shooting other than that KM “lunged” at him?

2. Was Johnson entitled to submission of the lesser-included offense of second-degree reckless homicide under the above circumstances?

3. Did the circuit court erroneously exercise its discretion in excluding evidence of alleged child pornography Johnson found on KM’s computer before he killed KM?

[continue reading…]

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet.  [continue reading…]

State v. Heather Jan VanBeek, 2019AP447, certification granted 9/16/20; District 2; case activity (including briefs)

We wrote about this case less than a month ago, when the court of appeals issued its certification to the supreme court. Now the certification is granted, so SCOW will have a chance to deal with the inconvenient fact that our state’s cases permit police to seize people without reasonable suspicion in order to verify their identities. [continue reading…]

State v. Mitchell L. Christen, review of a one-judge court of appeals decision granted 9/16/17, case activity (including brief)

Issue presented:

Wisconsin Statute § 941.20(1)(3) provides whomever goes armed with a firearm while under the influence of an intoxicant is guilty of a Class A misdemeanor. The consumption of alcohol may lead an individual to become under the influence of an intoxicant, but the consumption of alcohol is not prohibited. The question presented is: Does the consumption of a legal intoxicant void the Second Amendment’s guarantee of the right to carry a firearm for the purpose of self-defense?

[continue reading…]