On Point

State v. Edward Cotton, 2013AP452, District 1, 1/7/14; court of appeals decision (not recommended for publication); case activity

At the hearing on Cotton’s petition for discharge from his ch. 980 commitment the state’s experts testified that Cotton’s high psychopathy coupled with his sexual deviance raised his risk to reoffend. They also opined that sex offender treatment Cotton received in prison did not significantly reduce his risk because it wasn’t designed to treat offenders with high psychopathy. (¶¶3-5). Cotton’s expert testified his psychopathy was moderate, not high, and that treatment had reduced his risk. (¶¶6-8). (There was no dispute about Cotton’s diagnoses. (¶¶3, 4, 6, 16).) The circuit court found the state’s experts more convincing. (¶¶10-14). The court of appeals affirms, holding the evidence was sufficient to support the denial of discharge. The circuit court appropriately weighed the experts’ opinions and found the state’s experts more credible than the defense expert. “We are bound by the factfinder’s determination on credibility. State v. Kienitz, 227 Wis. 2d 423, 435, 597 N.W.2d 712, 717–718 (1999) (“The trier of fact has the ability to accept so much of the testimony of a medical expert that it finds credible, and it then weighs the evidence and resolves any conflicts in testimony.”) (citation omitted).” (¶17).

State v. Ronald Knipfer, 2014 WI App 9, petition for review granted, 5/23/14, affirmed, 2015 WI 3; case activity

In this follow-up to the recent decision in State v. Alger, 2013 WI App 148, ___ Wis. 2d ___, ___ N.W.2d ___, the court of appeals rejects two constitutional challenges to the legislation that limits the newly-adopted Daubert standard for the admission of expert testimony to ch. 980 cases commenced on or after the date the standard took effect.

As explained in our post on Alger, when 2011 Wisconsin Act 2 adopted the Daubert standard, it specified that the new standard applied to actions commenced on or after February 1, 2011, the Act’s effective date. Alger, who had originally been committed in 2004, argued that the petition for discharge he filed in April 2011 “commenced” a new “action” and therefore the Daubert standard applied. Knipfer, first committed in 2002, made the same argument with respect to the discharge petition he filed in 2012. (¶2). The court of appeals rejected Alger’s argument, so its decision in that case controls here and requires rejection of Knipfer’s argument, too. (¶6). But the court also addresses two constitutional issues not addressed by Alger.

First, Knipfer argues that if the Daubert standard doesn’t apply him, then Act 2’s applicability provision violates equal protection. While Alger made a similar equal protection claim, the decision in that case applied rational basis scrutiny because the court concluded Alger wasn’t arguing for strict scrutiny. Alger, ¶25. Knipfer expressly argues for the application of strict scrutiny because his liberty is at stake. (¶¶9-10, 12). The court rejects his argument, relying on Milwaukee County v. Mary F.-R., 2013 WI 92, __ Wis. 2d __, 839 N.W.2d 581, which addressed the issue of whether the legislature violated the equal protection clause by providing for six-person, non-unanimous juries under§ 51.20 while twelve-person, unanimous juries are required under ch. 980. (¶15). Mary F.-R. applied rational basis review, rejecting an argument that the underlying liberty interest required strict scrutiny of the different jury procedures:

….While liberty is a fundamental right, Foucha v. Louisiana, 504 U.S. 71, 86 (1992), and involuntary civil commitment is a “significant deprivation of liberty,” Addington v. Texas, 441 U.S. 418, 425 (1979), Mary F.-R.’s challenge relates only to the jury procedures available for initial commitment hearings under Wis. Stat. § 51.20 and not to the use of involuntary commitments in general. Unlike a situation where protection for a fundamental liberty interest is interfered with impermissibly, having a six-person jury trial is not the “equivalent to having no jury trial at all.” State v. Huebner, 2000 WI 59, ¶18, 235 Wis. 2d 486, 611 N.W.2d 727. There is no right to a 12-person jury in civil proceedings such as here. Id., ¶¶17-19.

Mary F.-R., ¶38. The court of appeals says this holding requires rejection of Knipfer’s strict scrutiny claim:

¶16      A similar analysis applies here. The continuation of a Wis. Stat. ch. 980 civil commitment is a significant deprivation of liberty, but Knipfer’s equal protection challenge relates only to whether the Daubert evidentiary standard applies, not to the use of ch. 980 commitments in general. And, as we suggested in Alger, being subject to the pre-Daubert standard is not the same as being deprived of a meaningful opportunity to challenge expert evidence. See Alger, 2013 WI App 148, __ Wis. 2d __, ¶22. Finally, there is no stand-alone right to the application of the Daubert standard.

Knipfer also argues that given the liberty interest at stake at a discharge hearing, due process requires the application of the evidentiary standard that ensures a more accurate and reliable outcome. (¶20). The court rejects this claim, too: “Even if it is true that the Daubert standard increases the reliability of discharge proceedings, this does not mean that those proceedings are unreliable without the standard. At a minimum, we would require additional legal or factual support from Knipfer in order to seriously consider this argument.” (¶20).

The reliance on Mary F.-R. is interesting. The supreme court did conclude that rational basis was the applicable level of scrutiny, but it went on to hold that ch. 51 respondents are not similarly situated to ch. 980 respondents because “[a]t every step of the involuntary commitment process, individuals subject to Chapter 980 are subject to greater liberty restrictions than individuals subject to Wis. Stat. § 51.20.” Id., ¶48 (emphasis added). Thus, the legislature decided to provide added protection to ch. 980 respondents by giving them the right to a unanimous 12 person jury. Id., ¶60.

Even if the greater loss of liberty suffered by ch. 980 respondents doesn’t automatically require strict scrutiny, it bears on the question of whether there is a rational basis for allowing the use of the Daubert standard only in ch. 980 cases filed after February 1, 2011. Remember, under Alger and now Knipfer, it isn’t just the commitment trial in pre-Act 2 cases that is affected;  in cases filed before Act 2, all future proceedings for discharge or supervised release will be governed by the current rule, not by Daubert. As both Alger and Knipfer point out, reading Act 2’s initial applicability date the way the court of appeals does in their cases means that a discharge proceeding in their cases that occurs 10 or 20 (or more) years hence will be subject to the old version of § 907.02, while a discharge proceeding for a post-Act 2 case will have the benefit of the more stringent Daubert standard, even though both proceedings are addressing the very same question of whether the respondent is still a sexually violent person, and thus whether the indefinite and severe restriction on their liberty will continue. The closing paragraph of our post on Alger criticized the court’s unfair treatment of Alger’s argument on this point, so we won’t repeat it here; suffice it to say, in neither that case nor this one does the court undertake to elucidate “any reasonably conceivable state of facts that could provide a rational basis for the classification” that Act 2 creates based on the arbitrary filing date of the ch. 980 petition (to quote the standard from Mary F.-R., ¶52, citing F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)).

State v. Torrey L. Smith-Iwer, 2013AP1426-CR, District 1, 12/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

Smith-Iwer was convicted of four misdemeanors as a repeat offender under § 939.62(1)(a) and given four consecutive two-year sentences, each consisting of one year of confinement and one year of extended supervision. He moved for postconviction relief, arguing the sentences were illegal under State v. Volk, 2002 WI App 274, 36, ¶36, 258 Wis. 2d 584, 654 N.W.2d 24, which holds that the unambiguous language of § 973.01(2)(c) prohibits using enhancer time to increase the extended supervision portion of a bifurcated sentence. After the trial court denied his motion he appealed, reiterating his Volk claim and arguing that under State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App. Nov. 3, 2009) (unpublished), the one-year term of confinement meant he could be given only three months of ES.

For the same reasons it gave in State v. Groce, 2013AP844-CR (Wis. Ct. App. Sept. 4, 2013) (unpublished), the court here concludes that the sentence is not illegal under Volk because that case applied to felonies (¶12), §973.01 has changed since then to allow for bifurcation of misdemeanors (¶¶11-12), and the new version of the statute “[i]n essence … creates a ‘75/25’ rule, which states that the maximum ‘term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence,’ while the term of extended supervision ‘may not be less than 25% of the length of the term of confinement in prison.’” (¶13). Because Smith-Iwer’s sentences are in accord with this “75/25” rule, they are not illegal. (¶14).

Our prior posts have spilled a lot of virtual ink on this issue already, so we’ll spare you another explanation of the basic problem with bifurcating enhanced misdemeanors. If you need a refresher, see here for Gerondale and State v. Ash, 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), which adopted Gerondale; see here for Groce and here for State v. Robinson, 2012AP2498-CR (Wis. Ct. App. July 23, 2013) (unpublished), both of which–like the judge in this case–rejected Gerondale; and, lastly, see here for State v. Griffin, 2012AP2361-CR (Wis. Ct. App. July 30, 2013) (unpublished), which agreed with Gerondale that § 973.01 is internally inconsistent when it comes to bifurcating misdemeanors, but then came up with a very different solution to the problem.

A couple of observations about this case, however. First, you may not need to keep track of the welter of unpublished, nonbinding opinions for long. Prior posts have noted that the conflicts in § 973.01 cry out for a legislative fix, and though there appears to be no such fix in the offing we may soon get a precedential decision on the issue. District 2 has ordered a case involving this issue to be decided by a three judge panel (thus making the opinion eligible for publication) and the case is now under submission. State v. Lee Thomas Lasanske, 2012AP2016-CR (case activity here). Stay tuned to this site for updates.

UPDATE (2/26/14): Lasanske has now been decided; it adopts the approach taken in Groce and this case, and invokes reasoning similar to the discussion in this post, below. Our post on Lasanske is here.

Second, about the applicability of Volk and the changes made to the statute by TIS-II, after Volk was decided. The court’s reasoning is a bit cryptic, but its point might be this: Under TIS-I, all the classified felonies had a specified maximum term of years of confinement. For unclassified felonies, the max was 75% of the total bifurcated sentence. When TIS-II made misdemeanor repeaters subject to bifurcation, it set maximum confinement terms for the various old and new felony classes and provided for the 75% cap on the term of confinement to apply to the bifurcated sentence for any crime that is not a classified felony. See § 973.01(2)(b). For every classified felony, then, § 973.01(2)(b) sets a maximum term of confinement under a bifurcated sentence, and the language from § 973.01(2)(c) that Volk dealt with is easily applicable to adding enhancer time to that specified term of confinement.

For misdemeanors, though, there is no set maximum term of confinement under § 973.01(2)(b) because a misdemeanor is not bifurcated unless it is enhanced. Because the enhancer time is what made the misdemeanor offense subject § 973.01 to begin with, the enhancer time is in a sense “used up” to make the crime eligible for bifurcation; thus, the enhancer time is not available to be added in again under § 973.01(2)(c), and the sentence is subject only to the 75% rule under § 973.01(2)(b)10. and the 25% rule under § 973.01(2)(d). And, if the rule about adding enhancer time only to confinement under § 973.01(2)(c) doesn’t apply, then Volk doesn’t apply–not because Volk involved a felony, but because it interpreted a statute that doesn’t apply to enhanced misdemeanors.

Of course, if this is the court’s line of thinking, it is still unsatisfactory. Besides being metaphysical, the fact is that enhancer time is still being used as extended supervision, and § 973.01(2)(c) on its face prohibits the application of enhancer time to ES. Note, too, this line of thinking is not the same as saying, as does Robinson, ¶12, that there is some significance in the fact that misdemeanors are enhanced to a new maximum term, § 939.62(1)(a), while felonies are enhanced by a set number of years, § 939.62(1)(b) and (c). That language difference long predates TIS-I, let alone TIS-II; moreover, it doesn’t resolve any problems posed by enhancing a misdemeanor under a statute other than § 939.62(1)(a).

Finally, the court of appeals concludes Smith-Iwer didn’t preserve his Gerondale argument because he cited only Volk  in the trial court. (¶2). That conclusion seems strained given the fact that Gerondale itself simply applied Volk to the statute. Nevertheless, a word to the wise if you are making this argument: Cite Gerondale, too.

State v. Thomas A. Jahnke, 2013AP1576-CR, District 1, 12/27/13; court of appeals decision (1-judge; ineligible for publication); case activity

Whether a defendant’s Sixth Amendment right to a speedy trial has been violated depends on: the length of the delay; the reason for the delay; the defendant’s timely assertion of the speedy-trial right; and prejudice to the defense from the delay. Prejudice is assessed by considering pretrial incarceration, anxiety and concern of the defendant, and impairment of the defendant’s ability to present a defense. Barker v. Wingo, 407 U.S. 514, 530, 532 (1972).

Jahnke was arrested for OWI in March 2008 but was not charged until November 2010. (¶2). While the court assumes the two-year, eight-month delay is presumptively prejudicial, it concludes Jahnke has failed to show prejudice. Jahnke was not in custody till well after the complaint was filed, so he doesn’t rely on that factor. (¶3). The court concludes the other two factors do not support a finding of prejudice. As to his personal anxiety and concern, Jahnke argues that before finally being charged he participated and completed a number of AODA programs to rehabilitate himself, only to then face prosecution. (¶4). The court is curtly dismissive of this argument:

¶8        …. Looking at his claimed “anxiety” we see in his submissions only a spur to rehabilitation. As a matter of public policy and common sense that can hardly be the type of oppressive anxiety implicated by even a presumptively prejudicial speedy-trial deprivation, unless there are other circumstances not present in this case. Indeed, the prejudice component of the deprivation of speedy court process has focused on whether that would “adversely” affect the person’s prospects for rehabilitation. See Strunk v United States, 412 U.S. 434, 439 (1973) (emphasis added). Thus, post-conviction and pre-sentence rehabilitation is often asserted a reason for sentencing leniency. Here, Jahnke was at liberty without cash bond until he did not appear at scheduled court hearings, and, until he forfeited the first cash bond, he was free to go about his business and rehabilitation efforts. …

As to impairment to Jahnke’s ability to mount a defense, the court essentially finds this argument undeveloped, as he did not appeal the circuit court’s decision to suppress the blood results on account of the delay in the case and cannot say whether testing of the long-ago-destroyed blood sample would have been helpful. (¶¶4, 8). Accordingly, the court says, Jahnke has not shown prejudice under Barker. (¶8).

The court’s mechanical application of the speedy trial test is at odds with the rule that the Barker factors comprise “a four-part balancing test” and that the right “is not subject to bright-line determinations and must be considered based upon the totality of the circumstances that exist in any specific case.” State v. Borhegyi, 222 Wis. 2d 506, 509-10, 588 N.W.2d 89 (Ct. App. 1998). Consequently, while prejudice is an important factor, “it is not necessary that a defendant show prejudice in fact in order to establish a speedy trial violation.” State v. Urdahl, 2005 WI App 191, ¶34, 286 Wis. 2d 476, 704 N.W.2d 324.

By focusing solely on prejudice, the court ignores the other two factors. The state’s negligence apparently caused the delay in charging, which would mean that factor weighs in Jahnke’s favor. As for assertion of the right, Jahnke alleged trial counsel was ineffective for failing to assert his right to a speedy trial; in fact, because he pleaded guilty, his entire speedy trial claim was brought as an ineffective claim due to the guilty plea forfeiture rule. (¶¶1, 5). Moreover, the court’s reliance on Strunk seems inapposite. The language the court of appeals cites is part of the Court’s observation that delay may have less impact on someone already confined–which Jahnke clearly wasn’t until after the complaint was filed– unless the prisoner’s rehabilitation prospects are affected. This is not quite a statement that speedy-trial analysis has “focused” on adverse effects on rehabilitation. All in all, then, this is a closer case than the court’s too-narrow analysis makes it out to be.

State v. Gregory Garro, 2013AP342-CR, District 1, 12/27/13; court of appeals decision (not recommended for publication); case activity

Garro waived the right to counsel before trial after two retained lawyers withdrew because he couldn’t pay them. (3). Garro told the court he couldn’t afford the fees quoted by the lawyers, but did have some money to hire counsel. (4). After being given time to look for a lawyer he could afford, Garro decided to represent himself and, after a thorough colloquy, the court allowed him to do so. (¶¶5-11). Postconviction, he argued his waiver of counsel before trial was not voluntary because the trial court failed to establish that his waiver was “free from financial constraint.” (¶15). The court rejects the argument:

¶21      First, Garro’s argument is unsupported by citation to any legal authority requiring the trial court to ensure that his waiver was “free from financial constraint,” and he fails to otherwise explain how his argument relates to the four [State v.] Klessig[, 211 Wis. 2d 194, 564 N.W.2d 716 (1997),] factors. We do not consider undeveloped arguments that are unsupported by legal authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).

¶22     Second, the law dictates that Garro was entitled to “an adequate lawyer, not the best lawyer.” See State v. Hanson, 2000 WI App 10, ¶20, 232 Wis. 2d 291, 606 N.W.2d 278 (Ct. App. 1999). While Garro informed the court that he could not afford to pay $50,000-$60,000 for an attorney, he could afford to pay $10,000-$15,000.  Furthermore, the trial court told Garro that it could, upon Garro’s request, appoint him counsel if he could not afford a lawyer. Garro made no request for a court-appointed lawyer and continued to request permission to represent himself. The record demonstrates that Garro certainly had access to a constitutionally adequate attorney and that he was not financially limited to proceeding pro se.

In a fact-specific analysis, the court also holds that the trial court properly exercised its discretion in excluding evidence Garro sought to introduce because it was not relevant. (¶¶2, 24-34).

OLR v. Bridget E. Boyle, 2011AP1767-D, per curiam, case activity

Communicating with a client who has been convicted of a crime and sentenced to prison can be challenging.  Still, the Supreme Court Rules apply whether an attorney is hired or appointed and whether her clients are difficult or cooperative.

In this ethics decision, SCOW found that Attorney Boyle committed a host of SCR violations, including failure to keep her clients (both prisoners) reasonably informed about the status of their cases; failure to comply with a client’s reasonable requests for information; failure to communicate the basis for her fees and expenses; failure to respond to a client’s request for information about her fees and expenses; failure to return the client’s file upon request; charging an unreasonable fee; failure to hold unearned or advanced fees in trust until earned; and failure to return unearned fees to the client upon termination of representation.

Much of Boyle’s misconduct centered on her poor communication with clients.  Boyle presented a long list of excuses for why she did not return calls and letters, but SCOW rejected them.  It is worth noting the excuses that SCOW found so unpersuasive:

· C.M. [a client] wrote and called [Boyle] too frequently.

· Telephone calls from prisons are not clearly identified on telephone systems.

· [Boyle] was out of the office or busy when C.M. called.

·[Boyle’s] failure to respond to C.M.’s communications was reasonable given that there was no ongoing activity in his case at that time.

· C.M. could relay messages to [Boyle] through his family and friends.

· Written communications to a client in the federal prison system are risky because other inmates may steal them.

· Keeping memos or notes of her communications with clients is dangerous for [Boyle’s] clients.

· Setting up telephone conferences through the prison system is difficult.

· [Boyle] is too busy to document all communications with clients.

· [Boyle] could not send C.M. his file because it was too large to transmit to the prison.

· The precise nature of services to be rendered in criminal matters is difficult to state in writing at the commencement of representation.

· [Boyle] was unaware and therefore did not inform C.M. of the district court’s denial of relief under 28 U.S.C. § 2255 because of the “unique nature” of the federal court’s electronic filing system.

 Boyle’s license has been suspended for 6 months.  Before she may resume practice, Boyle will have to show that she has made efforts to remedy the causes of her repeated failures to serve her clients ethically.  She must also pay $2,500 in restitution to one of her clients and pay for the costs of this OLR proceeding.

State v. Mark K. Schrick, 2013AP1166-CR, District 4, 12/27/13 (1-judge decision, ineligible for publication); case activity

Actually, this case concerns more than just dentures.  A jury convicted Schrick of operating a vehicle with a prohibited alcohol concentration in violation of §346.63(1)(b). On appeal, Schrick challenged (1) the trial court’s decision to deny his motion for a directed verdict, (2) the sufficiency of the evidence supporting his conviction, and (3)  a jury instruction saying that by statute the administered breath test was considered accurate.  All three arguments turned on the facts that the officer who performed the breathalyzer test did not follow administrative code procedures, and Schrick was wearing dentures when he blew into the testing device.

The court of appeals’ decision affirming the conviction rested on two principles.  First, the State’s non-compliance with administrative code provisions goes to the weight, not the admissibility, of the breathalyzer test results.  See City of New Berlin v. Wertz, 105 Wis. 2d 670, 674, 677, 314 N.W.2d 911 (Ct. App. 1981).  Second, the statutory presumption of accuracy that attaches to a breathalyzer test” extends only to the validity of the underlying scientific process.”  Slip op., ¶17.  Despite the presumption, a defendant may still argue that the machine was not in good working order or that the officer operated the machine incorrectly.  Id.

Directed verdict/sufficiency of evidence.  Those two principles pretty much took the bite out of Schrick’s appeal.  The trial record contained some evidence that: (1) the officer had administered the breath test correctly, (2) the sole expert witness regarding dentures had relied on a 1995 study, which had used an outdated breathalyzer, and (3) the denture expert never examined the breathalyzer used in this case; he estimated Schrick’s BAC based on Schrick’s testimony alone.  Since the standards for reviewing the denial of a directed verdict and the sufficiency of the evidence require the court of appeals to view the evidence most favorably to the State and the conviction, Schrick lost both of these arguments.

Jury instruction.  Schrick argued that the trial court should not have instructed the jury on the statutory presumption of reliability of the breath test because the officer administered it incorrectly.  But, again, the point took no skin off the court of appeals’ teeth.

¶29 . . . Consistent with the statutory presumptions analysis set forth above, the jury instruction informed the jury that the method used by the testing device, here the Intox EC/IR II Breathalyzer, was scientifically reliable. However, the jury instruction also informed the jury that in assessing whether Schrick was guilty of operating with a prohibited alcohol concentration, it was required to determine whether the State proved that the testing device was correctly operated by a qualified person. Accordingly, the jury instruction correctly informed the jury that while the method employed by the testing device was scientifically reliable, the jury still needed to weigh the evidence to determine whether the operation of the test was proper. Wertz, 105 Wis. 2d at 674