On Point

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

¶9 n. 2:

McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.”  (Most capitalization omitted.)  The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is:  “For all of the reasons set forth in the State’s excellent brief, which the court adopts as its decision in this matter, the court denies the defendant’s motion as well as the evidentiary hearing he requests.”  We agree with McDermott that this is inappropriate—judges must not only make their independent analyses of issues presented to them for decision, but should also explain their rationale to the parties and to the public.  See Trieschmann v. Trieschmann, 178 Wis. 2d 538, 541–542, 504 N.W.2d 433, 434 (Ct. App. 1993) (Improper to “simply accept[] a [party]’s position on all of the issues of fact and law without stating any reasons for doing so[.]”);cf. Wis. Stat. § 751.10 (“The supreme court shall decide all cases in writing.”); Wis. Stat. § 752.41(1) (“In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.”).  Although we do not in Wisconsin have a specific rule that requires trial judges to state their reasons, as does, for example, the United States Court of Appeals for the Seventh Circuit, we believe that the following admonitions by that court are a good reminder why judicial decisions at all levels must be explained by the judge or judges in their own words:

Circuit Rule 50, which requires a judge to give reasons for dismissing a complaint, serves three functions:  to create the mental discipline that an obligation to state reasons produces, to assure the parties that the court has considered the important arguments, and to enable a reviewing court to know the reasons for the judgment.  A reference to another judge’s opinion at an earlier stage of the case, plus an unreasoned statement of legal conclusions, fulfils none of these.

….

From time to time district judges extract portions of briefs and use them as the basis of opinions.  We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own….  Judicial adoption of an entire brief is worse.  It withholds information about what arguments, in particular, the court found persuasive, and why it rejected contrary views.  Unvarnished incorporation of a brief is a practice we hope to see no more.

DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990).  We agree.  Since our review of the circuit court’s denial of McDermott’s motion to modify his sentence is based on our de novo analysis of whether he has presented new factors, the circuit court’s failure to give its reasons (rather than adopt the State’s brief in haec verba) is of no consequence in this case.

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.” The court holds that such participation isn’t a new factor, distinguishing State v. Doe, 2005 WI App 68, ¶¶8–9, 280 Wis. 2d 731, 697 N.W.2d 101 (Doe provided information leading to conviction for a homicide previously thought accidental; this “post-sentencing substantial assistance to law enforcement is a new factor”).

¶14      Doe is a far cry from what we have here.  The programs in which McDermott participated may or may not have been valuable in deterring at least some youngsters from committing crimes, but under no stretch of the imagination can McDermott’s participation be equated with the type of “substantial assistance” envisioned by Doe; simply put, McDermott did not give any “information to law enforcement to assist in ferreting out and curtailing crime,” no less “valuable information.”  See id., 2005 WI App 68, ¶10, 280 Wis. 2d at 740, 697 N.W.2d at 106 (emphasis added).  McDermott’s participation in the programs was not a “new factor” and thus, as a matter of law, does not pass the first hurdle of Harbor’s two-part analysis.

Two-step new factor test, State v. Harbor, 2011 WI 28, ¶¶35, 51, 333 Wis. 2d 53, 72, 77, 797 N.W.2d 828, discussed (defendant has burden to establish existence of new factor, reviewed de novo; if defendant passes this screen, then trial court exercises discretion on whether to modify sentence, reviewed deferentially), ¶9.

Sentencing Review – New Factor – Reduced Threat 

The court rejects McDermott’s argument that his sentence may be modified because he no longer presents a threat to society.

¶15      Recognizing that a new factor does not encompass post-sentencing “rehabilitation,” see State v. Crochiere, 2004 WI 78, ¶¶14–15, 273 Wis. 2d 57, 68–69, 681 N.W.2d 524, 530, clarified or modified on other grounds by Harbor, 2011 WI 28, ¶47 n.11, 333 Wis. 2d at 76 n.11, 797 N.W.2d at 839 n.11, McDermott contends that his “actions over the past 19 years remove” the basis for the trial court’s assertion that it would “never feel comfortable around you.”  He says that he “has made good” on his promise to rehabilitate himself, and that this is, therefore, a “new factor” that justifies modifying his parole-eligibility date: “Had the [trial] court known that McDermott’s transformation in fact was sincere, the scales would have weighed differently, with his sincerity mitigating against the perceived need for such a lengthy period before parole consideration to protect the community or to address his character.”  McDermott says “that the attainment of his goals and proving that he in fact could be rehabilitated, something the sentencing court was uncertain he could accomplish, is the new factor. McDermott’s conduct puts to rest any doubt the [trial] court had about his ability to change.”  This, however, is but an “I am now rehabilitated” argument in slightly different clothes, and could apply to almost any defendant who on sentencing day apologizes and promises to put his disordered life together.  If accepted as a “new factor,” it would wholly gut established law in Wisconsin that “an inmate’s progress or rehabilitation while incarcerated” is not a “new factor.”  See Crochiere, 2004 WI 78, ¶15, 273 Wis. 2d at 69, 681 N.W.2d at 530.

Sentencing Review – New Factor – Adolescent Brain Development Research 

McDermott, just turned 18 when he participated in the homicide, “argues that what he says is the recent realization in the scientific community that adolescents are generally impulsive and often have trouble making wise choices is a new factor that, if known by the trial court in 1991, would or might have resulted in a different parole-eligibility date,” ¶16. The court rejects the argument, deeming it controlled in the first instance by the holding of State v. Ninham, 2011 WI 33,¶91, 333 Wis. 2d 335, 797 N.W.2d 451 that, although studies re: adolescent brain development may not have been in existence at time of Ninham’s sentencing, the conclusions they reached “were already in existence and well reported by the time Ninham was sentenced in 2000”: “The conclusions were also known when the trial court sentenced McDermott” in 1991, ¶19.

¶20      Second, that adolescents are generally more impulsive than adults has been known since humans were able to observe their environment.  Thus, for example, Aristotle noted in his Nicomachean Ethics that, “[y]oung people are in a condition like permanent intoxication[.]” Wikiquote, http://en.wikiquote.org/wiki/Aristotle (last visited Dec. 12, 2011).  And even before that, Book 23 of Homer’s The Illiad recited in one of the many translations:

You know how a young man
can do foolish things.  His mind works quickly,
but his judgment’s suspect.[[3]]

¶21      To say, as McDermott argues, that the trial court did not realize what recent scientific research has confirmed ignores reality, and, in essence, puts the old wine of human experience in the new bottles of recent research and labels the entire package as “new.”  As we have seen, Ninham rejected this false labeling.  Ninham, 2011 WI 33, ¶92, 333 Wis. 2d at 386, 797 N.W.2d at 476–477 (“[T]he ‘new’ scientific research regarding adolescent brain development to which Ninham refers only confirms the conclusions about juvenile offenders that the Supreme Court had ‘already endorsed’ as of 1988.”) (citation omitted).

¶22      In essence, McDermott’s lament echoes what has been attributed to Ben Franklin:  “Reckless youth makes rueful age.”[4]  The legislature has created a scheme of accountability for convicted criminals, and has given the circuit courts discretion either to deny the possibility of parole to those convicted of first-degree intentional homicide, or to set a parole-eligibility date.  Indeed, as we have seen, McDermott and his accomplice killed their victim when McDermott was eighteen. Under the capital-punishment decision on which McDermott relies for his contention that new research on brain function justifies a modification of his parole-eligibility date, Roper v. Simmons, 543 U.S. 551, 569 (2005), states may sentence eighteen-year olds to death, see id., 543 U.S at 575.  As with Ninham, McDermottt has not shown that the new research is a “new factor” under the first aspect of Harbor’s two-part analysis.  That McDermott may now rue what he did does not change things.

Take note: The court “commend(s) the State for including the full transcript of McDermott’s sentencing in its supplemental appendix, even though this was McDermott’s responsibility,” ¶1 n. 1. Recall that the court of appeals has the authority to impose a sanction for an  inadequate appendix, State v. Nielsen, 2011 WI 94, which authority it has specifically exercised where the appendix didn’t include the entire sentencing transcript on appeal of a sentencing issue (“there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue”). Hence the mention of the footnote in this post; a friendly reminder, in other words.

Separate post follows on the duty of a trial judge to exercise discretion independently. Here, it will simply be noted that the postconviction court seemed to abdicate its responsibility to engage in independent review of the motion to modify sentence, ¶9 n. 2. This abdication didn’t impede review, but only because the question (whether McDermott had established a new factor) was one of law, therefore reviewable de novo. Id. Hard to think that review of a discretionary ruling suffering the same defect would meet the same treatment.

Question Presented: 

Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

Scotusblog Page

Florida supreme court decision, State v. Jardines (4/14/11)

Coverage by Lyle Denniston, Orin Kerr (“fun stuff for Fourth Amendment nerds”), Kent Scheidegger (“This is solid police work”), Mike Sacks (w/nice shots of Franky), Sam Cooke, Frankie and Johnny (just because, but if you need a reason: it’s a bye week).

Wisconsin caselaw takes a, well, dogmatic view that a dog sniff isn’t a “search,” within the meaning of the fourth amendment. The outcome of this cert grant won’t affect that result with respect to cars – there, the battle will continue to to be fought on the basis for the (continuing) detention, e.g., State v. Salonen, 2011 WI App 157 – but has the potential to impact residential searches. Lower court holding: “probable cause, not reasonable suspicion, is the proper evidentiary showing of wrongdoing that the government must make prior to conducting a dog ‘sniff test’ at a private residence.” Florida’s cert petition (p. 13) explicitly seeks a holding “that a dog sniff of a house is not a search.” (House. Car. What’s the difference, anyway.)

Make your vote count! Prosecutors behaving badly. (Call us vote-rigging provincials, but we’re partial to the Badger state nominee, Grant County DA Lisa Riniker, UW 2000, who wants a 6-year-old held subject to sex offender registration for “playing doctor.” Residency restrictions for this 6-year-old? Deterrence at work. We have too many doctors, anyway.)

Cliff Gardner “says there are two types of criminal defense lawyers: Those who respond professionally to an ineffectiveness claim, and those who don’t.”

Mike Sacks, “Chief Justice John Roberts’ Defense Of Supreme Court Ethics Doesn’t Soothe Critics” (re the Chief’s expression of “complete confidence in the capability of my colleagues to determine when recusal is warranted”: “The chief justice might hope that would be the end of the criticism; he likely knows better.”) An equally skeptical Sherrilyn Ifill: “The Chief Justice of the United States is too polite to tell those of us who’ve raised concerns about Supreme Court ethics and recusal standards to go jump in a lake.” (Mendota? C’mon in, the water’s still fine!) You etymologists out there: do “recuse” and “recall” have shared roots? Just wondering.

Sooner or later, the law school bubble is gong to burst. (“Law students have more debt on average than almost all other graduate students, excepting only medical students. And more law students borrow to pay for their education than all other graduate students.”) More on the bubble, from the estimable Michael Cicchini. Related (“700 Lawyers Apply for 12 Openings at DA’s Office; Harvard Law Grad Likes the Job”)?

Via Kent Scheidegger: “Arizona has prevented more than a million crimes since 1994 by incarcerating its most dangerous criminals, according to a major research study released today.” Marquette’s own, invaluable Michael O’Hear, takes a look at “The Effect of Truth in Sentencing in Wisconsin,” and observes that under the TIS regime, “Wisconsin’s imprisonment rate has dropped markedly in comparison with those of the peer states.” But, “Wisconsin’s rate of violent crime in 2010 was actually slightly higher than it was in 1999.” Why, then, might TIS have “put the brakes on a rapidly expanding prison population”? Possibly, Professor O’Hear hypothesizes, at least in part because by taking “the parole board out of the equation for new crimes, TIS may have mitigated a dysfunctional institutional dynamic.” Larger message: monocausal explanations of crime and imprisonment rates (TIS has reduced crime!) should be resisted; for good reason, multivariate analysis is beyond reach of most of us. David Cole’s contribution: “Turning the Corner on Mass Incarceration?” (“While what must be done is relatively clear—reduce criminal sentences, reduce reliance on criminal penalties for illicit drugs, increase resources for alternatives to incarceration, and invest in communities that are most vulnerable to crime—it is less clear how we persuade the public that these measures are worth it.”)

“ACLU Backs Young Defense Lawyer Jailed by Judge for Asserting Client’s 5th Amendment Rights.” Contemnor attorney’s brief, here.

Judges behaving badly. Reprimand, for judge who “imposed a punishment in a case that involved handcuffing a father to a son as a punishment.”

Now that we have conceal-carry, it’s germane to ask: “Does Presence of a Concealed Weapon Create Reasonable Suspicion of a Crime?”

“Football Over Soccer.”  (“Soccer is called the beautiful game. But football is chess, played with real pieces that try to knock each other’s brains out. It doesn’t get any more beautiful than that.”) Hey, it’s from a soccer-loving Brit, and for that matter he could have said the same about basketball and baseball, not to mention jazz – all, without the beat-your-brains-out part. Besides, we do have soccer the way it was meant to be played – it’s just that we call it, lacrosse.

court of appeals decision (1-judge, not for publication); pro se; case activity

Plea Withdrawal – Nelson/Bentley Hearing – Exculpatory Evidence 

Ardell wasn’t entitled to a hearing on his postconviction plea-withdrawal motion premised on alleged suppression of exculpatory evidence. The court holds that, even assuming that the State did withhold exculpatory evidence, the motion failed to show that revelation of this evidence would have impacted Ardell’s plea decision, ¶¶17-18.

The court cites the general test for holding a Nelson/Bentley hearing, ¶¶15-16 – which is to say, roughly, a hearing on a claim “extrinsic” to, as opposed to a deficiency in, the plea colloquy. The court does not, however, acknowledge plea-withdrawal caselaw dealing specifically with suppressed exculpatory evidence, e.g., State v. Sturgeon, 231 Wis. 2d 487, ¶35, 605 N.W.2d 589 (Ct. App. 1999) (“We conclude that the relevant inquiry is whether there is a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial”; enumerating factors informing this inquiry, ¶36): why not rely on that, more pinpoint, authority rather than boilerplate? (But see, State v. Harris, 2004 WI 64, ¶23 n.15, 272 Wis. 2d 80, 680 N.W.2d 737, and accompanying text, holding “that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain,” while declining to overrule Sturgeon, at least for the moment.) Although the court here did not purport to apply Sturgeon‘s reasonable probability test, there is no reason to think it inapplicable.

Plea Colloquy – Sufficiency 

¶21      In the present case, the record conclusively shows that, during the plea colloquy, the circuit court:  (1) expressly referred to the plea questionnaire and waiver-of-rights form and addendum, as well as the attached standard jury instruction for knowingly violating a domestic abuse injunction, which Ardell signed; and (2) verified with Ardell’s attorney that she went over the relevant elements of the offense with Ardell.  The circuit court asked Ardell whether he had read and signed the plea questionnaire and waiver-of-rights form and addendum, as well as the attached jury instruction.  Ardell confirmed that he had.[7]  The court continued to reference the form and jury instruction when it asked Ardell if he had sufficient time to review all the matters referred to in the documents and discuss them with his lawyer.  Again, Ardell replied that he did.  The court then expressly asked Ardell if he understood that by pleading guilty he was “giving up … the right to have a jury trial where the State has the burden of proving each and every element of the offense of violating a domestic abuse injunction?”  And Ardell told the court he understood.  In addition, the circuit court asked Ardell’s counsel whether she “explain[ed] to him the nature of the[] offenses, that is, all the elements that the State would have to prove up for each of these counts if this were to go to trial?”  Trial counsel affirmed that she had.

¶22      Because the record conclusively establishes that the circuit court abided by the requirements of Wis. Stat. § 971.08 and Bangert when accepting Ardell’s pleas, Ardell has not met his burden of demonstrating that a manifest injustice occurred and the circuit court did not err in denying him an evidentiary hearing on those grounds.

Plea procedure recited, ¶20.

State v. Anrietta M. Geske, 2012 WI App 15 (recommended for publication); for Geske: Jefren E. Olsen, SPD, Madison Appellate; case activity

Sufficiency of Proof – “Utter Disregard” Element (Reckless Homicide, § 940.02(1)) 

Evidence held sufficient to support reckless homicide element of utter disregard of human life, where deaths resulted from high-speed automobile collision after running red light, notwithstanding undisputed evidence that Geske swerved her car in an attempt to avoid the collision. Balistreri v. State, 83 Wis. 2d 440, 458, 265 N.W.2d 290 (1978) and Wagner v. State, 76 Wis. 2d 30, 47, 250 N.W.2d 331 (1977) – in both instances, the driver’s swerving his vehicle precluded finding of utter disregard -, distinguished.

¶18      We agree with Geske that her case is similar in many respects to Wagner, in particular, as well as Balistreri.  It is not, however, the same.  Geske was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills. She never braked or slowed down before running the red light, even though her view to the right—where the victims’ car came from—was obscured by a large sign.  These factors demonstrate an utter disregard for human life, regardless of whether Geske attempted a last-moment swerve.[2]  A legally intoxicated person[3] driving over eighty miles per hour through the city could not reasonably expect to avoid any collision by swerving at the last moment.[4]  Given the totality of the situation here, Geske’s ineffectual swerve failed to demonstrate a regard for human life.

¶19      This case is distinguishable from Wagner because Geske had ample notice that her victims might cross her path:  a red light at an intersection. …

Wagner could have reasonably expected that others would be aware of the drag-racing cars’ approach that July night, thereby reducing the potential that somebody would enter the racing vehicles’ path.  Geske, on the other hand, should have reasonably expected her victims to cross her path—they had a green light and their view in Geske’s direction was obscured.[5]

¶20      Wagner is further distinguishable because of the extreme speed involved in this case.  There was no evidence in Wagner that the defendant was driving nearly as fast as Geske was.  As speeds increase, the probability of avoiding a collision by swerving, of course, decreases.

Balistreri distinguished in that there, the driver “took numerous actions to avoid collisions,” wasn’t going as fast as Geske, and wasn’t intoxicated, ¶21. If there is an applicable rule, it is that there are no per se rules in this area” but, instead, “a totality of the circumstances approach,” ¶17, quoting State v. Burris, 2011 WI 32, ¶38 n. 9, 333 Wis. 2d 87, 797 N.W.2d 430, which in turn quotes State v. Miller, 2009 WI App 111, ¶37, 320 Wis. 2d 724, 772 N.W.2d 188. (The first rule is that there are no rules.) Factors informing this approach discussed briefly, ¶11, citing State v. Jensen, 2000 WI 84, ¶24, 236 Wis. 2d 521, 613 N.W.2d 170; Wis JI—Criminal 1020 (Apr. 2002); et al. The court is not, of course, saying that swerving is irrelevant to the determination of utter disregard, only that it isn’t necessarily decisive. Consider, in this regard, that the jury received lesser offense options of second-degree reckless and negligent homicide, something the court notes without comment, ¶9; notes, that is, without suggesting that either option should not have been submitted to the jury.

Minor oddity: the court manages to discuss the offense without once giving its statutory cite or quoting its formal elements. Maybe we’re supposed to know without being told, or maybe it just isn’t important. But in case you’re interested, first-degree reckless homicide is a violation of § 940.02(1).

Discovery – Expert Witness Computer Simulation – Rebuttal 

The State’s rebuttal use of a computer simulation (“EDSMAC”) wasn’t covered by pretrial disclosure requirements of § 971.23(1)(d), (1)(e), notwithstanding that the rebuttal witness testified in the case-in-chief and was listed as a witness under para. (1)(d). Discovery requirements apply only to test or experiment results the State intends to use. “Thus, it is irrelevant whether the person who conducted the experiment is named as a witness,” ¶24. Geske’s argument, that an objective rather than subjective test applies to disclosure, is controlled by State v. Moriarty, 107 Wis. 2d 622, 321 N.W.2d 324 (Ct. App. 1982), decided under a prior but “substantially equivalent” discovery statute:

¶27      Here, the prosecutor represented during trial and postconviction proceedings that the State did not intend to offer the simulation in evidence at trial until [defense expert] DeRosia referred to EDSMAC during cross-examination.  The circuit court apparently accepted the State’s representation.  Therefore, in accordance with Moriarty, the State was not required to disclose the EDSMAC simulation prior to DeRosia’s testimony.

¶28      Moreover, even if we were to apply an objective standard, that is, whether a reasonable prosecutor would have intended to use the simulation at trial, Geske’s argument still fails.  The simulation could not be used to confirm the State’s experts’ testimony, because their conclusions required numerical inputs that the simulation program could not accept.  Thus, the EDSMAC program was irrelevant to the State’s case.  It only became relevant when DeRosia testified that an EDSMAC simulation should have been run, and testified regarding what data inputs should have been used.  The State then rebutted DeRosia’s testimony by introducing such a simulation.  That simulation, however, could not validate the State’s experts’ conclusions.  No reasonable prosecutor would have intended to offer irrelevant evidence.

A party has a duty to “promptly notify the other party of the existence of … additional material” that is belatedly uncovered, § 971.23(7): that duty was met here, the court concluding that disclosure of intent to introduce the EDSMAC simulation 2.5 hours after cross-examination of DeRosia was reasonable, ¶¶29-30.

Evidence – Foundation / Probative Value – Computer Simulation

The EDSMAC computer simulation, used to estimate vehicle speed on impact, was admissible, against challenges to foundation and probative value.

¶32      We reject Geske’s argument that the EDSMAC simulation lacked foundation and probative value.  The simulation did not need to precisely reflect all the conditions of the crash to be admissible.  Rather, Meyers only needed to enter data that was “sufficiently similar to [the actual conditions] to give the jury a view of what occur[red].”  See Maskrey v. Volkswagenwerk Aktiengesellschaft, 125 Wis. 2d 145, 166, 370 N.W.2d 815 (Ct. App. 1985).  Any faults in the variables entered into Meyers’ simulation were adequately presented to the jury on cross-examination.  See id. at 165.  Further, the simulation was not introduced to precisely re-create the accident.  Rather, it was introduced to demonstrate that DeRosia’s recommended validation tool failed to validate his conclusions.  The fact that the simulation could not demonstrate whether the Porsche was going eighty-five miles per hour has no bearing on its ability to demonstrate that the Porsche was not going fifty-five miles per hour.

Sentencing Review – Exercise of Discretion 

The court upholds Geske’s sentence to the maximum, rejecting her argument that the trial court placed excessive weight on her demeanor and slighted her clean prior record:

¶36      The court here properly considered the three primary sentencing factors.  We have reviewed the court’s sentencing comments and observe no error in discretion.  The court acknowledged it was aware of Geske’s bipolar disorder and that it may have had an effect on the court’s perception of Geske’s demeanor.  The court was therefore entitled to place the weight on Geske’s demeanor it saw fit.  As to Geske’s truthfulness, the court could properly consider that factor as it related to Geske’s remorse.  The court considered Geske’s “perjured,” “ridiculous,” “selfish,” “laughable,” not “remotely believable,” “manufacture[d]” testimony to be “direct proof of lack of remorse and repentance.”  It was not unreasonable to conclude Geske falsely testified that she inadvertently accelerated through the red light because she was reaching for her little dog.

Nature of sentencing review recited, ¶35.

State v. Jerome Mark Panick, Jr., 2011AP1107-CR, District 3, 1/4/12

court of appeals decision (1-judge, not for publication); for Panick: Paul G. LaZotte, SPD, Madison Appellate; case activity

The court rejects Panick’s argument that he “substantially complied” with IAD requirements for demanding a speedy trial on a detainer as set forth in § 976.05(3)(b). (Panick concededly fell short of the literal requirements – he mailed a letter to the prosecutor but failed to send it certified or to the local court or to obtain the warden’s certificate.) Fex v. Michigan, 507 U.S. 43, 49-50, 52 (1993), applied and followed.

¶17      Here, irrespective of whether Panick’s letter to the State substantially complied with the IAD’s requirements, he failed to also send notice to the court.  Because Fex requires that both the court and the prosecutor receive actual notice of a request for final disposition, we cannot construe his 2008 letter to the State as also putting the court on notice.  See id.; see also United States v. Washington, 596 F.3d 777, 781 (10th Cir. 2010) (Fex requires actual delivery of a request to both the prosecutor and the court); United States v. Brewington, 512 F.3d 995 (7th Cir. 2008) (notice sent only to the prosecutor was insufficient to trigger the IAD’s 180-day time limitation).