On Point

State v. Dennis R. Armstrong, 2014 WI App 59; case activity

The fact that Armstrong was entitled to eight months rather than approximately two years of sentence credit is a “new factor” because the information was unknowingly overlooked at sentencing and the amount of sentence credit was highly relevant to the circuit court’s imposition of the sentence:

¶13      At the sentencing hearing, Armstrong’s trial counsel told the circuit court that Armstrong was entitled to “two years something” of sentence credit. The prosecutor did not object to this statement, but rather stated: “We would have to stipulate to that amount.” The court’s statement, “[s]ure would be helpful if the court knew what the credit time is,” demonstrates that the court was not otherwise aware of the amount of sentence credit to which Armstrong was entitled at the time of the sentencing. The prosecutor’s and defense counsel’s each answering “Yes” to the court’s query, “You have not got it figured out? It is considerable if it is approaching two years[,]” confirms that the parties and the court at that point believed that Armstrong was entitled to approximately two years of sentence credit. These exchanges at the sentencing hearing demonstrate that the fact that Armstrong was entitled to only eight months of sentence credit was “unknowingly overlooked by all of the parties.” Rosado [v. State], 70 Wis. 2d [280,] 288[, 234 N.W.2d 69 (1975)].

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¶16      We agree with Armstrong that the amount of sentence credit to which Armstrong was entitled was a factor “highly relevant to the imposition of [the] sentence.” Rosado, 70 Wis. 2d at 288. Throughout the sentencing hearing, the circuit court pointedly and repeatedly drew attention to the amount of sentence credit to which Armstrong would be entitled, and made clear why the topic was important to the court. The court made statements that included the following: “We need to get [the sentence credit] figured out,” and “[H]ow does [sentence credit] calculate in.” The court noted that the sentence credit would be “considerable if it is approaching two years.” And finally, the court explained: “You know, you [Armstrong] have a lot of credit. The time that you are going to be serving in confinement is not going to be long.” The court’s repeated references to sentence credit were consistent with the court’s stated intent that Armstrong “serve some confinement time” that “is not going to be long” in order to give Armstrong a chance to “show that absolutely this is the last time that I [Armstrong] am going to be doing stuff like this.”

Because Armstrong has shown a new factor, the case is remanded for the circuit court to determine whether the new factor justifies modification of the sentence. (¶¶10, 33).

In addition to its grant of relief, the decision is notable for its discussion of Struzik v. State, 90 Wis. 2d 357, 279 N.W.2d 922 (1979).  (¶¶21-31). Struzik was entitled to fourteen days of sentence credit and was sentenced to five years, fourteen days in prison. Struzik, 90 Wis. 2d at 367. The supreme court reversed the sentence, saying “the trial court should first determine an appropriate sentence, then determine the time spent in preconviction custody, and finally credit that time toward the sentence imposed.” Id. The state argues Struzik establishes a rule that a judge can’t consider the amount of sentence credit before deciding the sentence to be imposed; therefore, if Armstrong’s sentence credit was highly relevant to the sentence, then the sentence (and any modification based on correct information about credit) violates Struzik. (¶19).

After considering Struzik in light of the law governing sentence credit and the clarification provided by cases interpreting it, the court concludes it addresses a “clearly defined problem: a court acting with the improper purpose of depriving a defendant of sentence credit by enlarging the sentence.” (¶27). When that clearly defined problem isn’t present, Struzik‘s statement about determining the sentence before addressing credit is not a strict requirement. (¶27). Moreover, other cases, e.g., State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d 197, expressly recognize that the length of pretrial detention is a factor a court may consider when determining the sentence. Thus, the state’s narrow reading of Struzik is incorrect. (¶21).

State v. Marcos Ordonia-Roman, 2012AP1371-CR, District 1/4, 4/10/14; court of appeals decision (not recommended for publication); case activity

In a motion to suppress Ordonia-Roman’s confession, trial counsel alleged that during his interrogation Ordonia-Roman was without a required medication and was not allowed to take the medication. At the suppression hearing, however, Ordonia-Roman testified he had been prescribed the medication, but had not filled the prescription and was not taking the medication. The trial court believed Ordonia-Roman’s testimony and confronted trial counsel about the factual misstatement in the motion. Ordonia-Roman argues trial counsel took the court to be attacking him personally and thus defended himself by blaming Ordonia-Roman for being dishonest with him, creating a conflict of interest that deprived Ordonia-Roman of the effective assistance of counsel. (¶¶5-11, 14-15).

The court of appeals rejects Ordonia-Roman’s reading of the record (¶¶17-20) and comes to a very different conclusion about what it shows: “Properly read, the transcript shows that counsel suggested to the court that counsel himself erred in alleging that Ordonia-Roman was not ‘allowed’ to take blood pressure medication during the interrogations and that the allegation in the suppression motion was based on a misunderstanding between counsel and Ordonia-Roman, and not because Ordonia-Roman ‘behaved dishonestly.’” (¶20). While at least one of his comments “certainly does not put [trial] counsel in a flattering light” (¶19), the court finds no conflict and no basis for an ineffective assistance claim. (¶¶17, 22). 

The court of appeals’ hostility to Ordonia-Roman’s argument is remarkable given that the state concedes trial counsel had a conflict of interest. The state’s brief agrees trial counsel had a personal interest in trying to excuse the false allegation he made in the suppression motion, that his personal interest conflicted with his professional obligation to defend the credibility of Ordonia-Roman, and that trial counsel “performed deficiently by attempting to shift the blame for his false allegation to Ordonia-Roman by suggesting that Ordonia-Roman gave him the false information asserted in his allegation.” (State’s brief, at 7).

In addition, the trial court did not have to recuse itself on the grounds that a reasonable, objective observer could have questioned the judge’s ability to be impartial to defense counsel and to Ordonia-Roman. State v. Gudgeon, 2006 WI App 143, ¶24, 295 Wis. 2d 189, 720 N.W.2d 114 (there is an appearance of bias “whenever a reasonable person—taking into consideration human psychological tendencies and weaknesses—concludes that the average judge could not be trusted to” remain impartial under the circumstances). The court of appeals concludes “[a] reasonable objective observer would understand that the judge reasonably perceived the suppression motion as misleading.” (¶27). And, because the court rejects the argument that trial counsel blamed Ordonia-Roman’s dishonesty for the false allegation in the suppression motion, it also rejects the claim that the exchanges between the trial court and trial counsel create the potential of partiality toward Ordonia-Roman. (¶28).

While hostility toward a defendant’s lawyer can translate into bias against the defendant, e.g., Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), the hostility has to be “severe,” State v. Hollingsworth, 160 Wis. 2d 883, 894, 467 N.W.2d 555 (Ct. App. 1991). But even if the record here doesn’t establish the appearance of bias, the court incorrectly focuses its inquiry on whether a reasonable person would understand the judge reasonably perceived the motion to be misleading. The focus should be on whether a judge who has been misled by trial counsel can remain impartial toward the defendant. 

Finally, the court rejects Ordonia-Roman’s argument that the trial court improperly kept him from questioning the detective about his initial denials that he committed the charged offenses and about the interrogation process, which Ordonia-Roman said pressured him into confessing. Any error was harmless: There is no reasonable probability a jury would have ignored the testimony of the victim and the detective, and Ordonia-Roman himself told the jury that he was interviewed by two detectives, that he told the first detective that he did not commit the charged crimes, and that he eventually confessed because the second detective made false promises to him. (¶¶36-41).

Renee B. v. Dane County DHS, 2013AP2273, District 4, 4/10/14; court of appeals decision (1-judge; ineligible for publication); case activity

A circuit court’s decision to give grandparents notices of CHIPS hearings under the ch. 48 summons statute, § 48.27(2), doesn’t mean the grandparents have the right to intervene in the proceeding. While David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993), held that the general intervenor statute, § 803.09, does not apply to TPR proceedings, and that parties to the proceeding are determined by § 48.42(2), which prescribes who must be summoned, that holding doesn’t turn a summons statute into an intervenor statute:

¶14      Renee and Jay misconstrue the supreme court’s holding in David S. The court in David S. did not conclude that Wis. Stat. § 48.42(2) dictates who may intervene in TPR proceedings. Rather, the court narrowly determined that the general intervenor statute, Wis. Stat. § 803.09, does not apply to TPR proceedings. Thus, intervention in a TPR proceeding may not be achieved through that statute. Furthermore, even if Renee and Jay are correct that the supreme court effectively held in David S. that intervention in a TPR proceeding is controlled by the summons statute for TPR proceedings, Renee and Jay have not developed an argument as to why a supreme court holding specific to a TPR proceeding and a TPR specific statute is likewise applicable to a CHIPS proceeding. …

State v. Ivan Mendez, 2014 WI App 57; case activity

When Mendez pleaded guilty to maintaining a drug trafficking place his attorney failed to inform him that a conviction for charge would subject him to automatic deportation from the United States with no applicable exception and no possibility of discretionary waiver. Padilla v. Kentucky, 559 U.S. 356, 363 (2010) (explaining that Congress eliminated discretionary relief from deportation and that for controlled substance convictions like Mendez’s “removal is practically inevitable”). After his plea, while he was on probation, ICE arrested him and began deportation proceedings. He moved to withdraw his plea based on ineffective assistance of counsel, alleging his lawyer didn’t tell him he was virtually certain to be deported. (¶¶3-7).

While the circuit court recognized that Mendez’s counsel was deficient in failing to tell Mendez about the clear deportation consequences, it held Mendez could not establish prejudice because he did not show that “there would be a different outcome” or that he had “real and viable challenges to the underlying veracity of the conviction.” (¶¶1, 11). The circuit court applied the wrong legal standard:

¶12      Under Padilla, the question in determining whether deficient counsel prejudiced a noncitizen defendant’s plea deal is whether “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla, 559 U.S. at 372. The record does not show that the circuit court analyzed that question. “[A]s a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” Id.at 364 (footnote omitted). Mendez has lived in the United States since he was fourteen years old, longer than he ever lived in Mexico, and is married to a United States citizen here with whom he has a young child—also a United States citizen. He also asserted at the hearing that he fears retribution by his codefendant’s family should he be deported to Mexico. Under Padilla, a court’s analysis of prejudice must take those factors into account in measuring whether, properly informed of the automatic, irreversible, and permanent deportation consequences of his plea, Mendez might rationally have rejected the plea bargain in favor of trial despite the risk of four and one-half years of initial confinement. See id. at 372.

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¶16      Under Padilla, … “a rational decision not to plead guilty does not focus solely on whether [a defendant] would have been found guilty at trial—Padilla reiterated that an alien defendant might rationally be more concerned with removal than with a term of imprisonment.” United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011), abrogated in part on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013). In numerous post-Padilla cases, courts have concluded that despite the benefit of a great reduction in the length of the potential prison sentence, a rational noncitizen defendant might have rejected a plea bargain and risked trial for the chance at avoiding deportation. …

¶17      That is the proper analysis here, too:  not merely whether Mendez would have won his trial but whether in his particular circumstances, given his family in the United States and his fear of return to Mexico, he might rationally have decided to reject the plea and risked four and one-half years in prison, so as to preserve a chance of avoiding deportation.

The case is remanded to the circuit court so it can apply the correct Padilla standard. (¶2).

State v. Akil C. Jackson, 2014 WI App 50; case activity

Under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, Jackson’s statutory summary suspension in Illinois resulting from an OWI and PAC citation counts as a prior conviction under § 343.307(1) even though the citation was eventually dismissed.

Carter considered whether a prior suspension of operating privileges under the Illinois “zero tolerance” law should be counted as a prior conviction under § 343.307. Quoting § 340.01(9r), the court determined that the term “conviction” in § 343.307(1)(d) means “an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal.” Carter, 330 Wis. 2d 1, ¶¶42, 47-48. As with the “zero tolerance” law suspension, an Illinois statutory summary suspension starts with police officer’s initial determination that a person has violated or failed to comply with the OWI law. The officer notifies the driver, the appropriate court, and the secretary of state of the determination via a sworn statement, and the secretary affirms the suspension unless the person takes advantage of the law’s opportunity to challenge the suspension judicially (in summary suspension cases) or administratively and then judicially (in zero tolerance cases).

Finding “little distinction of import between the procedures in an Illinois statutory summary suspension and those in an Illinois zero tolerance suspension,” the court concludes Jackson’s statutory summary suspension is a “conviction” under Wis. Stat. § 343.307(1)(d) because it is “a determination … in … an authorized administrative tribunal” that Jackson “violated or failed to comply with the law.” (¶¶5-11).

However, the circuit court did err in counting a different Illinois conviction as a prior under § 343.307. In that case Jackson was initially arrested for OWI, but the charge was amended to reckless driving. To count as a prior conviction, the law under which Jackson was convicted must prohibit conduct specified in § 343.307(1)(d)–namely, refusing to submit to chemical testing; operating while intoxicated; operating with an excess alcohol concentrations; etc. Carter, 330 Wis. 2d 1, ¶45. The Illinois reckless driving statute doesn’t pass this test:

¶16      The State has pointed to no language in subsection (1)(d) suggesting Jackson’s reckless driving conviction qualifies as a prior conviction thereunder, nor do we find any. Instead, the State asks us to expand the language of Wis. Stat. § 343.307(1)(d)—which, again, counts prior out-of-jurisdiction convictions—by asking us to look at what offense was originally charged, what sanctions were imposed by the court on the reckless driving conviction, and how that conviction would preclude Jackson from being placed on supervision for a subsequent OWI conviction in Illinois. It is the job of the legislature, however, not the courts, to amend statutes….

State v. Roddee W. Daniel, 2014 WI App 46, petition for review granted 9/18/14, modified and affirmed, 2015 WI 44; case activity

When postconviction counsel questions a defendant’s competency to understand his or her § 809.30 appellate rights or ability to effectively communicate with counsel but the defendant asserts he or she is competent, defense counsel has the burden of proving the defendant is incompetent by the preponderance or greater weight of the evidence.

Daniel’s postconviction lawyer raised the issue of competency and obtained an evaluation. At a competency hearing Daniel himself claimed he was competent, and the state agreed. Postconviction counsel disagreed, and was allowed to present further evidence, including competing experts. The circuit court ruled that postconviction counsel had to prove by clear and convincing evidence that Daniel was not competent, and that he had not met that burden. (¶¶3-5).

A postconviction defendant’s competency is measured by whether he or she is able to assist counsel and make decisions pertaining to the criminal process “with a reasonable degree of rational understanding.” State v. Debra A.E., 188 Wis. 2d 111, 126, 523 N.W.2d 727 (1994). But Debra A.E. says little about the process for determining competency, holding only that it requires an exercise of discretion, which “will vary depending on the facts,” and that if an evidentiary hearing is held, the court “should be guided by [§] 971.14(4) … to the extent feasible.” Id. at 131-32. Because that statute places the burden of persuasion on the state regardless of whether the defendant claims to be competent or incompetent, the court of appeals concludes it provides no guidance here. (¶8). Instead, the court looks to Cooper v. Oklahoma, 517 U.S. 348 (1996), which addressed Oklahoma’s statutory requirement presuming a defendant to be competent to stand trial unless the defendant proved his or her incompetence by clear and convincing evidence. (¶9).

¶11      Although Cooper dealt with the test for competence to stand trial rather than competence in a postconviction proceeding, we see no distinction in the difference. The right to direct appeal from a criminal conviction is guaranteed by article I, section 21 of the Wisconsin Constitution. See State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). Wisconsin Stat. § 809.30 codifies that right. Competence during the constitutionally guaranteed direct appeal is equally as important and worthy of protection as is competence to stand trial. See Debra A.E., 188 Wis. 2d at 119, 129-30 (incompetent defendants have right to “fair opportunity” for postconviction relief). Placing a higher burden of persuasion on the defense to prove the defendant’s incompetence, whether at trial or upon direct appeal, risks denying constitutional protections to a defendant who is more likely than not (although not clearly and convincingly) incompetent. See id. at 133-36 (outlining protections available for incompetent defendants in postconviction proceedings). We may not impose procedural burdens incompatible with the United States Constitution. State v. Byrge, 2000 WI 101, ¶28 n.7, 237 Wis. 2d 197, 614 N.W.2d 477.

Thus, the circuit court erroneously imposed a higher burden of proof on defense counsel, and the use of an unconstitutional burden of proof can’t be deemed harmless when the facts of the case show the court’s conclusion might have been different under a correct burden of proof. United States ex rel. Bilyew v. Franzen, 686 F.2d 1238, 1246 (7th Cir. 1982). Accordingly, the case is remanded for the circuit court to apply the proper legal standard to the facts of the case. (¶¶12-13).

The majority opinion doesn’t say who would bear the burden of proof if Daniel had agreed with his lawyer that he was not competent. Would § 971.14(4) apply, meaning the state would have to prove Daniel is competent? That’s the implicit conclusion of a concurrence by Judge Neubauer (¶15), which notes the disagreement between Daniel and his lawyer makes this case different from the scenarios covered by § 971.14(4)(b), and that allocating the burden to postconviction counsel makes sense here because counsel “is the party objecting to the defendant’s position….”

State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

The circuit court, relying on the district attorney’s assertion of the so-called “interlocking confessions” doctrine, denied Navigato’s and Bieker’s motions to sever their trials on homicide, armed burglary, and armed robbery charges, even though the state intended to use both defendants’ out-of-court statements implicating each other as evidence in the trial. But the interlocking confessions doctrine was abrogated more than twenty years ago, so the circuit court was wrong to force Navigato and Bieker into a joint trial with all of their out-of-court statements admitted as evidence. The error wasn’t harmless, so Navigato and Bieker get new trials.

Navigato, Bieker and another man, Suchecki, invaded a home while armed. During a confrontation with the man and woman living there, the man, Leydel, was shot. (Bieker slip op., ¶¶5-8). Neither Navigato nor Bieker denied going to the house, having a confrontation with the victim, or that a shot was fired from a .22 caliber rifle Bieker was carrying. (Bieker slip op., ¶¶12-13). The issues at trial related to the parties’ intentions—i.e., what were their intentions in going to the victim’s house that night (robbery, or confronting Leydel about selling drugs to Navigato’s daughter), and did Bieker intentionally fire the fatal gunshot? (Bieker slip op., ¶¶9, 12, 19, 22).

Suchecki got a deal in exchange for his testimony, and a fourth co-defendant who drove the others to and from the house had his severance motion granted; but the trial court denied severance to Navigato and Bieker based on the “interlocking confession” doctrine. (Bieker slip op., ¶¶16-18). Bieker and Suchecki told police, and testified at trial, that the shooting was accidental. (Bieker slip op., ¶¶11, 13, 22-25, 31-32). Navigato didn’t testify, but his statements to police–that Bieker shot to defend him when he was scuffling with Leydel–were admitted. (Bieker slip op., ¶¶9, 12, 21, 44-45). 

The “interlocking confessions” doctrine was abrogated by Cruz v. New York, 481 U.S. 186, 193-94 (1987). (Bieker slip op., ¶¶1-2, 43). In addition, severance was required under the unambiguous language in § 971.12(3) (if the district attorney intends to use the statement of a co-defendant that implicates another defendant in the crime charged, “the judge shall grant a severance as to any such defendant”). (Bieker slip op., ¶¶2, 45.) The state concedes that the circuit court should have granted the defendants’ motions to sever, but argues the error was harmless. ((Bieker slip op., ¶¶43, 46). The court of appeals’ thorough-going decision explains well why the state is wrong:

¶3        This error had a domino effect. It led to the admission of numerous out-of-court statements by Navigato concerning Bieker’s motive for the crime. It may have compelled Bieker to testify against himself. And it left Bieker unable to confront Navigato, who did not testify. The errors were magnified because Bieker’s trial counsel did not make any hearsay or relevance objections to the admission of Navigato’s statements as evidence against Bieker and did not seek any instructions to the jury alerting them to the fact that some of the evidence was not to be considered in assessing Bieker’s guilt. 

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¶46      …. If this trial had been about whether Bieker shot Leydel, we would agree [that the error is harmless]. Bieker has never denied that fact himself. The defendants were caught red-handed, fleeing the scene, the weapon that fired the fatal shot was beside Bieker’s seat in the getaway car, and Bieker admits carrying that weapon to and from the scene. It is no surprise, in view of the evidence, that Bieker all along admitted that the fatal shot came from his weapon. Indeed, had the charge been anything less than first-degree intentional homicide, one wonders if  there would have been any trial at all because Bieker might have pled to what he agreed happened.

¶47      But intent to kill Leydel is what Bieker does not admit. And as to that issue, the error here was not harmless. …

¶48      The error here (reliance on the nontestifying codefendant’s statements) was not only frequent, it was continuous, infecting every portion of the trial, from the opening statements, through the presentation of evidence, and throughout the closing arguments. It makes sense that the evidence was referred to so frequently, given that it was important evidence on the only real issue in the case—intent.

Because the evidence about Bieker’s intent goes both ways, depending on which witnesses a jury believes, the whole case boiled down to credibility. (Bieker slip op., ¶¶49-51). That means the admission of Navigato’s statements could have tipped the scales against Bieker not only on the homicide charge, but also on the armed burglary and armed robbery charges:

¶52      …[A]lthough the error was most prejudicial on the issue of Bieker’s scienter as to the shooting, his credibility was the key to the jury verdicts on all four crimes. And the error makes the jury’s judgment as to his credibility unreliable. Where credibility is a key issue, a constitutional error that undermines credibility “infects” the whole trial. State v. Pitsch, 124 Wis. 2d 628, 646, 369 N.W.2d 711 (1985). This is not a case where we can disentangle some of the verdicts from the others. Bieker’s defense depended upon his credibility with the jury. There is no way to disentangle the jury’s determination of Bieker’s credibility, and the Confrontation Clause violation here undermined him.

As for Navigato, the court of appeals explains in a separate opinion why he is entitled to a new trial:

¶5        If the Bieker verdicts are unreliable, then, necessarily the Navigato verdicts are unreliable too. As the jury instructions explained, to find Navigato guilty of first-degree intentional homicide, even though Bieker pulled the trigger, the jury had to find that (1) the parties committed armed robbery, (2) first-degree intentional homicide was committed, and (3) that the homicide was a “natural and probable consequence of armed robbery.” … The linchpin of such a verdict was a finding by the jury that Bieker committed the crime of first-degree intentional homicide. That finding cannot be trusted because the error in denying the motion to sever the trials yet admitting the codefendants’ out-of-court statements incriminating each other tainted the trial on that very  issue. See Bieker, No. 2102AP2693-CR, ¶51.

The erroneous severance ruling was not solely the fault of the DA and the circuit court: Trial counsel didn’t realize that the interlocking confession law had been overturned, either. (Bieker slip op., ¶40). The situation leaves the court of appeals a bit exasperated: “We have a hard time understanding how law that had been abrogated twenty years before, with the law since then having been codified in our statutes, was relied upon in this trial.” (Bieker slip op., ¶53).