On Point

State v. Gabriella Bernabei, 2013AP1734-CR & 2013AP1735-CR, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1734-CR; 2013AP1735-CR

The trial court properly denied Bernabei’s motion to withdraw her pleas before sentencing because the record supported its conclusion that she had not proven she was suffering a panic attack at the time she entered her pleas.

Bernabei was charged with child neglect and multiple counts of animal mistreatment. (¶¶2-5). After selecting a jury, but before opening statements, Bernabei learned the police were executing a search warrant at her home based on fresh allegations of animal mistreatment. This led to a plea deal under which she pled no contest to child neglect and entered Alford pleas to four animal mistreatment charges. (¶8). During the plea colloquy she expressed some lack of understanding about what was going on, telling the court she felt threatened by the possibility of new charges arising from the search. (¶9). A week later she moved to withdraw her pleas, alleging she was in a state of extreme anxiety and in a “fog” at the time of the plea and that her pleas were induced by pressure from trial counsel.

At the plea withdrawal hearing her lawyer acknowledged he was “extremely forceful” in telling her to plead. Bernabei testified she was confused, frightened, intimidated and threatened, and described having physical symptoms of a panic attack. Bernabei’s therapist also testified. Though she didn’t opine about whether Bernabei was having a panic attack at the time of the plea, she described the symptoms of panic attacks, at least some of which wouldn’t likely have been evident to courtroom observers; explained that a person having a panic attack may appear able to rationally answer questions even if they don’t know what they’re saying; and explained that Bernabei called her in the evening after she entered her pleas and was exhibiting panic attack symptoms. (¶¶13, 25-31, 34-35).

Whether a defendant has shown a fair and just reason is up to the discretion of the circuit court, State v. Jenkins, 2007 WI 96, ¶29, 303 Wis. 2d 157, 736 N.W.2d 24. The circuit court concluded Bernabei didn’t prove she had a panic attack, noting in particular she didn’t exhibit any symptoms during the plea colloquy. The court of appeals affirms, disagreeing with Bernabei’s argument that the circuit court improperly rejected the testimony of Bernabei’s therapist that it might not be evident to observers a person is having a panic attack. The court of appeals says the trial judge’s conclusions were reasonable inferences from Bernabei’s conduct and demeanor at the plea hearing, which weighed in favor of a conclusion she wasn’t having a panic attack, and her testimony at the plea withdrawal hearing, which the trial court didn’t credit. The circuit court could also properly conclude that the fact Bernabei didn’t call her therapist till the evening, and didn’t alert anyone during the plea or immediately thereafter, indicates she wasn’t having the symptoms she claimed. (¶¶25-36).

The mantra that courts should take “a liberal, rather than a rigid, view” of reasons given for pre-sentencing plea withdrawal, e.g., State v. Bollig, 2000 WI 6, ¶29, 232 Wis. 2d 561, 605 N.W.2d 199, seems little more than precatory, pie-in-the-sky language, given that whether a defendant has presented a fair and just reasons is a discretionary determination by the trial court. Even so, the decision here is troubling because it ignores context that seems crucial to the “case-by-case analysis” these claims require, Jenkins, 303 Wis. 2d 157, ¶62.

Though the motion to withdraw (as described in Bernabei’s brief) broadly alleged hasty entry of the pleas, confusion, and pressure from trial counsel, the court of appeals addresses only the panic attack claim, saying that claim and her “desire for a trial” are the only two reasons Bernabei’s counsel cited at the plea withdrawal hearing. (¶¶16, 21). The state didn’t explicitly argue Bernabei’s claims were so narrowed, and it’s impossible from the appellate filings to assess the correctness of that conclusion. But even if it’s accurate, the court’s focus on two trees leads it to miss the forest of compelling contextual support for the panic attack claim. When filled out with information in Bernabei’s briefs that is given scant, if any, attention by the court of appeals, the whole picture is this: Bernabei was disabled due to dysthymia and anxiety diagnoses and was in therapy; she’s at trial when she learns the state is executing a search warrant at her home and may bring new charges–two startling developments each of which independently cause distress; she’s represented by a lawyer the trial court would not let her discharge two days earlier, and who has belittled and even insulted her (as evidenced by language in his pleadings quoted in Bernabei’s brief) and is now “extremely forceful” in telling her to plead; she expresses confusion during the plea hearing; and hours after the plea is still so distressed she calls her therapist and exhibits indicia of a panic attack. If a “liberal” view means anything, this concatenation of stressful events provides ample support for the claim Bernabei suffered a panic attack.

Finally, Bernabei’s claim is supported by two other factors. First, Bernabei asserted her innocence–something that is not necessary, though it bears on the credibility of the fair and just reason being offered. Jenkins, 303 Wis. 2d 157, ¶89. The court of appeals dismisses this consideration because Bernabei said at the plea withdrawal hearing that she wanted a fair trial and her day in court, ignoring the fact that Bernabei entered Alford pleas to the animal mistreatment charges–pleas that are by definition “accompanied by protestations of innocence,” State v. Johnson, 105 Wis. 2d 657, 661, 314 N.W.2d 897 (Ct. App. 1981). Second, Bernabei promptly filed a plea withdrawal motion, a fact the court doesn’t address because it wasn’t a specific reason raised at the plea withdrawal hearing. (¶16). But that’s inconsistent with the case law holding that promptly seeking plea withdrawal is relevant to overall assessment of the claim, e.g., State v. Shanks, 152 Wis. 2d 284, 290, 448 N.W.2d 264 (Ct. App. 1989), and not an independent reason for withdrawal that must be raised below or forfeited.

All in all, an example of how the putatively “liberal” rule governing fair and just reasons for plea withdrawal has devolved into a rigid, parsimonious one.

State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity

The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:

¶14      The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses. If Cole is to be believed, Cole decided to hide the gun from Evans for his protection. At that time, Cole did not know that the gun was loaded. As she was in the process of hiding the gun, Evans grabbed her in a “bear hug.” When Evans grabbed Cole, it knocked her off balance. Cole and Evans stumbled, and the gun went off. This evidence does not establish that Cole was or should have been aware that her having picked up the gun before Evans’ amorous advance created an unreasonable and substantial risk of death or great bodily harm to Evans. See Wis JI—Criminal 1060;Wis JI—Criminal 1175. Under Cole’s version, her conduct was not reckless or negligent at all – the shooting was “an unfortunate result of a prudent attempt” to protect Evans from himself. See State v. Echols, 152 Wis. 2d 725, 741, 449 N.W.2d 320 (Ct. App. 1989) (explaining that, while fight over gun presented unreasonable risk and high probability of death or great bodily harm, defendant’s testimony, if believed, did not create that situation; rather, “the shooting was an unfortunate result of a prudent attempt” by defendant to protect himself). We therefore conclude that the circuit court did not err by refusing to instruct the jury on the lesser-included offenses of second-degree reckless homicide and homicide by negligent handling of a dangerous weapon.

Nor did the trial court err in its rulings regarding evidence Cole sought to elicit about Evans’s previous suicidal threats:

¶18      Based on our review of the record, the following is clear: (1) Cole was allowed to testify that Evans was depressed about his legal problems and was facing prison time, and that Cole was concerned about the presence of a gun; and, (2) the circuit court ruled that Cole could testify that in March 2010, Evans made comments that caused Cole to believe he might harm himself and, as a result, Cole hid a gun from him. The testimony the court decided to allow would have provided the explanation that Cole proffered for her decision to hide the gun from Evans. This was ultimately the evidence that Cole sought to present. We therefore reject Cole’s argument that the circuit court erred by not allowing her to present evidence of Evans’ suicidal threats.

The court also rejects, in a fact-specific discussion, Cole’s claims that trial counsel was ineffective. (¶¶19-35).

In a nod to the Oscars, can you name the best legal movies of all times?  First guess, then see Above the Law’s post here.

The law you won’t be told!  Enjoy this short, funny video explaining juror nullification–but don’t show it to prospective jurors. Or maybe you should.  🙂

Surreptitious videos of SCOTUS arguments!  Cameras are not allowed in the United States Supreme Court, but that has not stopped gutsy protesters from taking videos of arguments–and mid-argument outbursts–on the sly.  Click here for the NYTimes story and here for one of the videos.

What does Google know about you and your clients?  Yikes!  Read the answer and listen to the NPR story here.

On Monday SCOTUS will hear arguments about how to determine whether a defendant is too mentally disabled to be executed.  May states just set an IQ test score cutoff?  (If the answer’s yes, you probably want to avoid test prep classes for that exam.)  Read the argument preview here.

Neurolaw?  It just might influence your defense strategy.  Click here.

Robert W. Evans, Jr., v. Wisconsin Dep’t of Justice, 2014 WI App 31, overruled by Doubek v. Kaul, 2022 WI 31; case activity

A conviction for disorderly conduct under § 947.01 may qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), thus depriving the defendant of the right to possess a firearm.

Evans’s application for a permit to carry a concealed weapon was denied after DOJ concluded his 2002 disorderly conduct conviction qualified as a “misdemeanor crime of domestic violence.” (¶1). As relevant here, 18 U.S.C. § 921(a)(33)(A)(ii) requires that a qualifying crime: 1) have, “as an element,” the use of physical force; and 2) be committed by a person who has at least one of several specified domestic relationships with the victim. United States v. Hayes, 555 U.S. 415, 420, 426 (2009). Both requirements are met here.

First, according to the transcript of the plea hearing, Evans was convicted of disorderly conduct based on a first element specified as “violent, abusive and otherwise disorderly conduct.” (¶12 and n.3) (emphasis added). The court concludes that “[b]ecause ‘violent’ conduct necessarily implies the use of physical force, we conclude that Evans’ conviction for disorderly conduct has the use of physical force as an element.” (¶12). There’s an important caveat, however:

¶20      We emphasize that we are not faced with deciding whether Evans’ crime would disqualify him if the record showed that he entered a plea based on an element of violent, abusive, or otherwise disorderly conduct. For that matter, we do not address other situations in which defendants enter pleas or are convicted following trials in which the alternatives are specified in the disjunctive charging that routinely occurs in disorderly conduct cases. In our view, the fact that Evans was convicted based on the element of violent, abusive, and otherwise disorderly conduct makes this a relatively easy case.

The court also rejects Evans’s argument that the different types of conduct listed in § 947.01 are simply different ways of committing the broader element of “disorderly conduct,” which doesn’t have physical force as an element. (¶¶9-11, 14-16). Nor does the court agree that the use of “physical force” under 18 U.S.C. 921 requires the force be directed at someone; it instead concludes the federal cases Evans cites–e.g., United States v. White, 606 F.3d 144, 147-48 (4th Cir. 2010); United States v. Griffith, 455 F.3d 1339, 1341-45 (11th Cir. 2006); United States v. Belless, 338 F.3d 1063, 1068 (9th Cir. 2003)–do not support this claim. (¶¶23-24).

The 2002 conviction also meets the second requirement–that the qualifying crime be committed by a person who has at least one of several specified domestic relationships with the victim. The victim of the crime was his stepdaughter, and § 921(a)(33)(A)(ii) covers “ a person similarly situated to a spouse, parent, or guardian of the victim.” While there is no prior case addressing this precise situation, the court concludes a stepparent is “similarly situated” to a parent under the statute:

¶30      …. The statute is plainly intended to cover a broad range of family and family-like relationships. Excluding stepparents, even those who do not actively “parent” a stepchild, would run contrary to Congress’s intent that the statute be broadly applied. See Woods v. City and County of Denver, 122 P.3d 1050, 1055 (Colo. App. 2005) (stating that “Congress intended the statute to have broad application and enforcement” (citing United States v. Smith, 964 F. Supp. 286 (N.D. Iowa 1997), aff’d, 171 F.3d 617 (8th Cir. 1999))).

Note that Evans’s argument that the analysis of whether the offense includes the use of physical force must be “categorical”–that is, must focus on the elements of the offense, not his actual conduct leading to the conviction. The court assumes without deciding that is correct, but concludes it doesn’t matter because that is how it is conducting the analysis. (¶¶17-19). For more on the “categorical” approach, see our post about Koll v. Dep’t of Justice, 2009 WI App 74, 317 Wis. 2d 753, 769 N.W.2d 69, a previous foray by the court of appeals into this issue. The elements-focused test does not apply to the second requirement regarding the defendant’s relationship with the victim. (¶27, citing Hayes, 555 U.S. at 421).

UPDATE (4/6/14): For more on the meaning of “misdemeanor crime of domestic violence,” be sure to see the Supreme Court’s March 26, 2014, decision in U.S. v. Castleman.

United States v. Apel, USSC 12-1038, 2/26/14

United States Supreme Court decision, vacating and remanding United States v. Apel, 676 F.3d 1202 (9th Cir. 2012).

Federal law makes it a crime to reenter a “military . . . installation” after having been ordered not to do so “by any officer or person in command.” 18 U.S.C. § 1382. A unanimous Court holds that the boundaries of the military installation covered by this prohibition include even a designated area for public protests and an easement for a public road through the installation:

Where a place with a defined boundary is under the administration of a military department, the limits of the “military installation” for purposes of § 1382 are coterminous with the commanding officer’s area of responsibility. Those limits do not change when the commander invites the public to use a portion of the base for a road, a school, a bus stop, or a protest area, especially when the commander reserves authority to protect military property by, among other things, excluding vandals and trespassers. (Slip op. at 13).

Vandenberg Air Force base is a “closed base,” meaning it can’t be entered without express permission. (Slip op. at 1). The government has, however, designated a public protest site just outside the main entrance. (Slip op. at 3). Apel, a frequent anti-war protester at the site, was subject to two orders barring him from the base–one for an act of vandalism (throwing blood on a sign for the base) and the second for ignoring the first barment order. (Slip op. at 4-5). After he continued to appear at the designated protest site despite the barment orders he was charged under § 1382, convicted, and fined. (Slip op. at 5). The Court rejects his argument that the statute covers only property that is under the exclusive control of the military, and so cannot cover the public protest area or the public highway that goes through the base (and adjacent to which the protest area is situated). The fact a highway and protest area lie outside the entrance to the military installation and that they are “uncontrolled” spaces where no military operations are performed does not matter: “We think a much better reading of § 1382 is that it reaches all property within the defined boundaries of a military place that is under the command of a military officer.” (Slip op. at 12-13).

The Court did not uphold his conviction for entering base property without permission, because Apel also made a First Amendment challenge to the law as it was used against him. Because the court of appeals didn’t reach that argument, the case is remanded for it to do so. (Slip op. at 13).

Wood County Human Services Dep’t v. Melanie M., 2013AP2814, 2013AP2815, & 2013AP2816, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2814; 2013AP2815; 2013AP2816

Foster parent testimony during the grounds phase of a TPR proceeding has the potential to be prejudicial because it creates a risk the jury will reach a verdict by comparing the biological parent to the foster parent; however, that does not mean such testimony is per se prejudicial. Nor does § 48.427(1m)’s recognition that the foster parent may be heard at the dispositional phase mean his or her testimony  is inadmissible at the grounds hearing. Instead, the trial court has the discretion under § 904.03 to admit or exclude the foster parent’s testimony , and the court here properly exercised its discretion in admitting the testimony in this case. (¶¶4-11). In addition, even if some of the foster parent’s testimony was erroneously admitted, it did not deprive Melanie of a fair trial because the testimony was a relatively brief portion of a three-day trial. (¶¶14-18).

State v. Keith R. Friederick, 2013AP1609, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity

Friederick was not seized by officer who approached him on the street and said sought to talk to him, applying United States v. Mendenhall, 446 U.S. 544 (1980), along with State v. Griffith, 2000 WI 72, ¶53, 236 Wis. 2d 48, 613 N.W.2d 72, and State v. Williams, 2002 WI 94, ¶23, 255 Wis. 2d 1, 646 N.W.2d 834 (an officer’s posing of a question to person doesn’t constitute a seizure despite the fact that most people feel some pressure to respond to police).

¶15      When Small first engaged Friederick in conversation, none of the circumstances indicating a seizure were present.  Small approached Friederick without activating his squad car’s emergency lights or siren. Small exited his squad car and walked toward Friederick. Small stated, “Good evening, I’m Deputy Small, I’d like to speak to you.” Small’s tone of voice was authoritative, but not aggressive. Friederick, who was walking, stopped and responded to the questions that Small asked him. A second officer arrived. That officer did not activate his emergency lights or siren. Neither officer displayed a weapon, or physically contacted Friederick.

¶16      In sum, while Friederick stopped in response to Small’s statement to him, the facts do not show that Small restrained Friederick’s liberty “‘by means of physical force or show of authority’” such that the encounter was elevated to the level of a seizure. Mendenhall, 446 U.S. at 552 (quoted source omitted). ….