On Point

State v. Jeffery Polar, Jr., 2014 WI App 15; case activity

The court of appeals holds that the plain language of § 973.195(1r)(a) requires a defendant serving multiple sentences to file a separate sentence adjustment petition for each individual sentence the defendant is seeking to adjust.

Polar’s governing sentences consisted of two consecutive terms, one with 7 years of confinement, the second for 3 years of confinement. (¶3). He filed two sentence adjust petitions after serving 85% of the total 10-year term of confinement. (¶4). (Both sentences were imposed in Class C felonies, and § 973.195(1g) requires the defendant serve 85% before filing a petition.) The circuit court denied the petitions as too late for the 7-year term of confinement and too early for the 3-year term; however, the court did give Polar the cold comfort of resubmitting a petition on the second sentence once he’d served 85% of the 3-year term. (¶¶5-6). The court of appeals affirms:

¶12      …. The statute very clearly states that “[i]f an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.” See Wis. Stat. § 973.195(1r). There is no alternative interpretation; multiple sentences are to be considered separately for the purpose of sentence adjustment. Additionally, § 973.195(1g) provides that the time an inmate must serve in prison before filing for an adjustment differs depending on the severity of the felony. Were we to contradict the very plain mandate of subsection (1r), the language of subsection (1g) would be completely eviscerated. The statute is plain, and the trial court correctly followed the plain language in concluding that Polar’s sentences were to be considered separately for adjustment purposes.

¶13      Moreover, there is no inconsistency in computing multiple sentences as a single sentence, as is mandated by chapter 302 of the Wisconsin Statutes, and requiring an inmate to file separate petitions for sentence adjustment. Treating all sentences as one as required by Wis. Stat. §§ 302.11(3) [sic] and 302.113(4)… simply means that a defendant must serve all of his or her initial confinement at once, and must then serve all of the extended supervision at once. Even given this system, there is nothing inherently illogical about requiring an inmate to file separate petitions for sentence adjustment….

A brief concurrence notes there’s nothing in the record showing whether Polar was advised of the date on which a petition could be filed on his sentences, or whether DOC “routinely” advises inmates of those dates. “Without evidence of the existence or absence of such sentence specific information, it is impossible for this court, or the circuit court, to conclude that § 973.195(1r)(a) is ambiguous as applied to these separate consecutive sentences or that an error of law occurred.” (¶16). This suggests that if DOC had advised Polar to wait to file till he’d served 85% of the total 10-year term, the court may have come to a different conclusion, at least as to his petitions.

Review of an unpublished, per curiam court of appeals decision; case activity; State’s petition for review

Issues (from the State’s petition):

1. Did the prosecutor’s sentencing argument breach the plea agreement by undermining the agreed-upon sentencing recommendation?

2. Was defense counsel ineffective for failing to object to the alleged breach of the plea agreement?

3. In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, the court of appeals held that when defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.” Id., ¶29. Should this court overrule the court of appeals’ decision in Sprang?

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. Do these provisions violate a criminal defendant’s constitutional rights to confront adversary witnesses, compel testimony by favorable witnesses, and have the effective assistance of counsel?

Attorney Marcus Berghahn wrote an On Point guest post about the court of appeals decision and what it means for criminal defendants in Wisconsin courts.  So if you’re looking for a terrific, detailed analysis of the issue, click here.

How many misdemeanor cases is too many for one public defender to take in one year?  Is it okay to advise a client to take a fantastic plea bargain without having a confidential conversation with him first?  What about skipping the investigation of  a client’s story?  In Wilbur v.  City of Mount Vernon, Case No. C11-1100RSL (12/4/13) the Western District of Washington slammed the “meet and plead” public defense systems in place in the cities of Mount Vernon and Burlington.  It placed the blame for shabby representation of indigent defendants squarely on the cities’ shoulders.

Mere appointment of counsel to represent an indigent defendant is not enough to satisfy the Sixth Amendment’s promise of the assistance of counsel. While the outright failure to appoint counsel will invalidate a resulting criminal conviction, less extreme circumstances will also give rise to a presumption that the outcome was not reliable. For example, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, if there is no opportunity for appointed counsel to confer with the accused to prepare a defense, or circumstances exist that make it highly unlikely that any lawyer, no matter how competent, would be able to provide effective assistance, the appointment of counsel may be little more than a sham and an adverse effect on the reliability of the trial process will be presumed. Cronic, 466 U.S. at 658-60; Avery v. Alabama, 308 U.S. 444, 446 (1940). Slip op. at 13.

The Court finds that the combination of contracting, funding, legislating, and monitoring decisions made by the policymaking authorities for the Cities directly caused the truncated case handling procedures that have deprived indigent criminal defendants in Mount Vernon and Burlington of private attorney/client consultation, reasonable investigation and advocacy, and the adversarial testing of the prosecutor’s case. The Cities are therefore liable under § 1983 for the systemic Sixth Amendment violation proved by plaintiffs. See Miranda v. Clark County, 319 F.3d 465 (9th Cir. 2003) (finding that county could be liable for constitutional deprivations arising from funding and case assignment policies); Clay v. Friedman, 541 F. Supp. 500, 502, 505-06 (N.D. Ill. 1982) (finding that administrative head of public defender’s office could be liable for non-representative decision-making and that county could be liable for promulgating policies and customs that led to the constitutional deprivation). Slip. op. at 16.

The real story might just be the court’s decision to tell the Cities specifically how to reform the public defense systems at issue.  Interesting stuff.  Click here for the district court’s decision.  See also Plaintiffs’ brief, City’s brief, Amicus brief.

Cuts in public defender programs cause Sixth Amendment violations, says federal judge.  Sort of “no duh,” but it’s a big story.  Read more here.

Forty two states get an “F” in judicial ethics, according to a new report by The Center for Public Integrity.  Guess which side of the line Wisconsin fall on?  You guessed right, but we’re by no means the lowest “F” in the class.  Click here.

“Remarkable new HRW report details massive ‘trial penalty’ due to mandatory minimums in federal system.”  That’s right.  Drug offenders who go to trial and lose receive sentences 3 times longer than those who plea bargain.  Click here to read more.

High-profile exception to the rape-shield law.  James, Winston, Kobe & Florida’s Rape Shields Rule.  Here on the Evicenceprof Blog.

“Treating Juveniles Like Juveniles:  Getting rid of transfer and expanded adult court jurisdiction.”  This is a new article on the subject.

How to build a white-collar criminal defense practice.  Not that we want  you to stop representing the indigent.  No indeed.  But you might find this an interesting way to supplement your income.

Have a good weekend.

State v. Adamis Figueroa, 2013AP47-CR, District 1, 12/3/13; court of appeals decision (not recommended for publication); case activity

Trial counsel was not ineffective for failing to object to the testimony of a police department employee about the content of two recorded conversations in Spanish between Figueroa and J.R., who alleged Figueroa had sexually assaulted her several years ago, when she was a child. (During one conversation J.R. wore a wire and spoke with Figueroa in person; the second conversation was a one-party consent telephone call.) Vele, a police department employee, translated for officers while the conversations were being recorded. (¶¶2-3, 5-7).

Figueroa argued trial counsel should have raised a hearsay objection to Vele’s testimony about what J.R. said during those conversations. (¶18). The state contended J.R.’s statements were admissible as adoptive admissions under § 908.01(4)(b)2. but Figueroa contended he didn’t adopt her statements. (¶¶18, 22). The court of appeals rejects Figueroa’s contention:

¶24      Adoption can be manifested through silence or absence of a denial. See [State v.] Marshall, 113 Wis. 2d [643,] 652[, 335 N.W.2d 612 (1983)]. For example, in Marshall, the Wisconsin Supreme Court concluded that Arthur Johnson’s testimony was admissible as an adoptive admission. Id. at 647, 652. Johnson testified that he heard the defendant request payment from Elijah Jackson, to which Jackson replied that he would not pay because the defendant had “hit” the wrong guy. Id. at 645. Rather than deny the accusations, the defendant “responded that he had put his life on the line anyway[.]” Id. at 648.  The court stated that: “One would certainly expect a denial from an innocent party accused of something as serious as murder,” and that the defendant’s failure to deny Jackson’s accusations constituted an adoptive admission. Id. at 652.

¶25      Similarly here, Figueroa adopted J.R.’s serious accusations by failing to deny them. J.R.’s questions to Figueroa, asking him why he sexually abused her as a young child, particularly those questions asking why he engaged in specific sex acts, were made directly to him and are certainly the types of statements that a person would ordinarily deny if they were not true. See id. Even if Figueroa had heard the accusations before, accusations of child sexual abuse are so serious, it is reasonable to conclude that a person would ordinarily continue to deny them, if not true. See id. Figueroa “manifested [his] … adoption or belief” in the truth of the statements, for purposes of admissibility under § 908.01(4)(b)2., by his silence and his non-responses to J.R.’s inquiries. See id.; see also United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996) (“Adoption can be manifested by any appropriate means, such as language, conduct, or silence.”). …

Even if trial counsel should have objected, Vele’s testimony about J.R.’s statements was not prejudicial: “J.R.’s allegations against Figueroa were already abundantly clear to the jury. She testified to them at length and in detail at trial. Vele’s testimony regarding those allegations is merely cumulative and does not convince us that the outcome of the trial is unreliable.” (¶26).

Trial counsel was also not ineffective for failing to object to Vele’s testimony under the “best evidence” rule, § 910.02, and to argue the recordings themselves should have been played instead of having Vele testify about their contents. (¶27). The court of appeals concludes the purposes of the best evidence rule would not be served by playing tapes of conversations in Spanish. (¶29). Nor was trial counsel deficient for failing to object to Vele’s competence to translate based on the fact she is not a certified Spanish language translator, as all that is needed is “a proper foundation … establishing the witness’s competence in English and the other language.” (¶32). And even if trial was deficient on these two grounds, Figueroa wasn’t prejudiced given that he called a certified Spanish language translator who impeached some of Vele’s translations of the conversations. (¶¶28, 33-35).

Finally, trial counsel was not ineffective for failing to object to the testimony of Castro, J.R.’s childhood friend, that J.R. had inserted a toothbrush into her own vagina, testimony Figueroa argues was irrelevant and in violation of the rape-shield law, § 972.11(2)(b). The court concludes that even if the evidence was inadmissible, it did not prejudice Figueroa given that the “hours of graphic testimony” from J.R. (¶40). Other instances of hearsay Castro testified to, including her statement that J.R.’s brother said he believed J.R.’s allegations, were also nonprejudicial. (¶¶41-45).

The court of appeals makes Figueroa’s “best evidence” argument seem a bit absurd by noting it makes little sense to play tapes of conversations in Spanish during a trial conducted in English. (¶29). But Figueroa’s brief (at 27-28) makes it clear he wouldn’t expect the jurors to listen to the tapes without assistance, as he points out an in-court interpreter could have translated as the tapes were played or a certified transcript with a translation could have been provided. Further, the court misapprehends Figueroa’s argument about the qualifications of the Vele. His brief (at 24-25) simply argues the prosecutor laid no foundation at all for her qualifications as a translator, not that Vele needed to be state-certified in order to testify. This misunderstanding doesn’t matter, of course, given the court’s rejection of the claim based on lack of prejudice.

The circuit court adopted the state’s brief in toto as the basis for its denial of Figueroa’s postconviction motion, and the court of appeals “once again” cautions trial courts not to do that. (¶13 n.4). (For other recent instances of this practice, see here, here, and here). The court of appeals also says–once again–that the trial court’s adoption of the state’s brief is of no consequence because it independently reviews the questions presented in the appeal.

State v. Trenton James Dawson, 2013AP834-Cr, District 1, 12/3/13 (not recommended for publication); case activity

This decision points up a problem in Wisconsin case law: How does an appellate court analyze “harmless error” in a situation where the trial court denies a motion to suppress a defendant’s confession, which then causes him to plead guilty?

Police interrogated Dawson for 30-45 minutes in the back of a squad car about his friend’s death.  Dawson insisted it was suicide until he got to the station.  There he repeated the suicide story, but after learning his friend had died, admitted that he had accidentally shot his friend.  On appeal, Dawson explained how suppression of the squad car statements would have significantly undermined the State’s ability to prove utter disregard for human life, one of the elements of  1st-degree reckless homicide, the crime to which he had pled guilty.  The court of appeals didn’t buy it.  It dodged the merits of the suppression issue and affirmed based on harmless error.

¶11 . . . “In a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable possibility that the erroneous admission of the disputed evidence contributed to the conviction.” State v. Semrau, 2000 WI App 54, ¶22, 233 Wis. 2d 508, 608 N.W.2d 376. When determining whether an alleged error is harmless, we may consider, “among other factors … the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence,” and “whether the improperly admitted evidence duplicates untainted evidence.” See State v. Rockette, 2005 WI App 205, ¶26, 287 Wis. 2d 257, 704 N.W.2d 382.

¶12 . . . Dawson’s argument that the squad car statement was more indicative of the “utter disregard for human life” element of first-degree reckless homicide, see Wis. Stat. § 940.02(1), than the statement at the police station because the police station statement was followed by an admission is unpersuasive. The trial court would have had the same information, that Dawson initially lied to police about how his friend got shot, whether or not the squad car statement was suppressed. Furthermore, contrary to what Dawson argues, the fact that Dawson initially lied to police was hardly the only evidence of Dawson’s “utter disregard” for Cunning’s life. See id. Dawson pointed a loaded, semi-automatic gun at his friend. He later not only lied about doing so, but also—even after finding out that his friend was dead—lied to police about other important details, including the location of the gun. The trial court had ample evidence with which to find Dawson guilty of first-degree reckless homicide. The trial court’s decision to suppress the squad car statement was harmless, and Dawson’s conviction will stand.

Note the court of appeals’ focus on whether the trial court would have had enough evidence to convict had the squad car statements been suppressed.  Dawson and the State framed the issue as whether he would have pled guilty had the squad car statements been suppressed.  It’s interesting that the court cites both Semrau and Rockette for the test it applied.  The Semrau test asks whether the defendant would have pled guilty.  See Semrau, ¶22.  Rockette expressly refused to apply the Semrau test for harmless error, relying instead on a SCOW harmless error test designed for trials, not pleas. See Rockette, ¶9 (applying State v. Hale, 2005 WI 7, 277 Wis. 2d 593, 691 N.W.2d 637).  Prior posts here and here explain the problem in more detail.  Sounds like there’s still some sorting out of the harmless error test to be done.