On Point

Hardy v. Irving L. Cross, USSC No. 11-74, 12/12/11, reversing Cross v. Hardy, 7th Cir No. 09-1666

The Seventh Circuit grant of habeas relief, on the ground “the state failed to demonstrate that it employed good faith efforts to locate the complainant” before declaring her “unavailable” and allowing her prior testimony to be read to the jury, is reversed:

The Antiterrorism and Effective Death Penalty Act of1996 (AEDPA), 28 U. S. C. §2254, “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U. S. ___, ___ (2011) (per curiam) (slip op., at 4) (internal quotation marks omitted). In this case, the Court of Appeals departed from this standard, and we therefore grant certiorari and reverse.

…

As we observed in Roberts, when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, see 448 U. S., at 75, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising. And, more to the point, the deferential standard of review set out in 28 U. S. C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identify additional steps that might have been taken. Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed.

The Court clearly intends to send a message with this wave-of-the-hand reversal of a fact-specific, otherwise (legally) insignificant grant of habeas relief: “highly deferential” review is not only expected, but demanded. The particulars won’t be discussed here, because they don’t much matter. (The complainant testified at Cross’s first trial, which resulted in partial acquittal and hung jury. At retrial, her first-trial testimony was read to the jury because she couldn’t be located, and Cross was found guilty on two of the remaining counts, acquitted on the third. A close case, in other words.) The operative principle is that for purposes of confrontation, the prosecution must make a “good-faith effort” to produce its witness in-person, before that witness may be declared “unavailable.” The Seventh, stressing the centrality of the missing complainant’s testimony, held that “the state was obligated to exert great effort to locate her.” The Court now rejects, albeit sub silentio, that embellishment of “good-faith effort.” Instead, “the state court identified the correct Sixth Amendment standard and applied it in a reasonable manner.” The Court cites, as apparent Confrontation Clause antipodes, Barber v. Page, 390 U. S. 719 (1968) (violation where “absolutely no effort” made) and Ohio v. Roberts, 448 U. S. 56 (1980) (no violation where effort made was reasonable, even if hindsight revealed additional steps that could have been taken). Meta-message: so long as at least some effort is made, then the AEDPA regime of “highly deferential” review leads to affirmance as a near-certainty.

Richard Friedman offers a quick take, here. (Roughly: while skeptical that the state exhausted its sources, he acknowledges that assessing good-faith “is very fact-intensive,” and generally not subject to bright-line rules. Moreover, the context – deferential, habeas review – probably dictated the result.)

State v. Jason L. Decorah, 2011AP662-CR, District 4, 12/8/11

court of appeals decision (1-judge, not for publication); for Decorah: Corey C. Chirafisi; case activity

Collateral attack on a prior OWI used as a current enhancer, on the ground Decorah didn’t understand the range of penalties therefore didn’t validly waive counsel. Decorah prevailed below, and the court affirms on this State’s appeal:

¶3        Decorah’s collateral attack is based on his contention that, at the time he waived his right to counsel in the second OWI case, he did not know the range of penalties he faced.  The State argues that State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, teaches that Decorah may not collaterally attack on this basis.  Specifically, the State asserts that “Ernst does not allow collateral attack for a penalties violation, only for Constitutional Right to Counsel.”  The State misreads Ernst.

¶4        … As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis. 2d 300, ¶15.  Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’”  See Ernst, 283 Wis. 2d 300, ¶15 (quoting Tovar, 541 U.S. at 81).  Thus, Ernst, contrary to the State’s position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel.

The trial court’s “credibility determination” that Decorah didn’t understand the “general range of penalties” is upheld as a matter of deferential review, ¶5. Asserted procedural hurdles of judicial estoppel and issue preclusion were forfeited by the State’s failure to raise them below. Claim preclusion – Decorah didn’t raise the present challenge in prior OWI-habituals, therefore shouldn’t be allowed to raise it now – is preserved but fails on the merits:

¶10      We have explained that, for purposes of claim preclusion, “Wisconsin applies a transactional approach to the determination of whether two suits involve the same cause of action.”  Id., ¶15.  The pertinent inquiry is whether “‘both suits arise from the same transaction, incident or factual situation.’”  Id. (emphasis added; citation omitted).  The present case does not arise from the same incident as any of the prior OWI cases.  Thus, the cause of action in this case is different.

Procedural note: This is brought on State’s appeal, after sentencing and in practical effect operates as a challenge to the length of sentence. § 974.05(1)(a) authorizes State’s appeal from an adverse final order or judgment adverse “if the appeal would not be prohibited by constitutional protections against double jeopardy.” Decorah didn’t argue a double jeopardy bar, and the propriety of the State appealing a sentence therefore passes without comment, ¶1 n. 2. A knotty question, to be sure. Whether modification of a sentence violates double jeopardy turns, as a general matter, on whether the defendant had a “legitimate expectation of finality” in the original sentence. E.g., State v. Gruetzmacher, 2004 WI 55, ¶39, 271 Wis. 2d 585, 679 N.W.2d 533; State v. Willett, 2000 WI App 212, ¶6, 238 Wis. 2d 621, 618 N.W.2d 881. It might be tempting to say that Decorah couldn’t have had an expectation of finality in his sentence, when he himself commenced successful litigation to lower its ceiling. But that might also be too facile; allowing the State to appeal a sentence because it thinks the sentence too short isn’t necessarily what the legislature intended with this provision. The problem, that is, is worthy of closer thought – and it is potentially recurrent, given that the protocol for challenging an enhancer is the same for all sentencings, not just traffic.

Dane Co. DHS v. Lee H., 2011AP1138, District 4, 12/8/11

court of appeals decision (1-judge, not for publication); for Lee H.: Theresa J. Schmieder; case activity

The trial court did not err in directing answers to special verdict questions with respect to two elements of grounds for terminating parental rights (existence of order containing TPR notice placing the child outside the parent’s home; failure to visit or communicate with child 3 months or longer). Directed verdict as to grounds is allowed, but “only where the evidence is so clear and convincing that a reasonable and impartial jury properly instructed could reach but one conclusion,” ¶10 (cites and quote marks omitted).

As to the first matter (order containing notice), trial counsel conceded that the trial court could direct the verdict question, ¶15, and the issue is therefore presently raised in the context of ineffective assistance of counsel. However, the postdisposition record shows the existence of the order and its receipt by Lee H., therefore he can’t satisfy the prejudice requirement of an IAC claim,  ¶¶22-25.

As to the second, Lee H. argues that he fell within the § 48.415(1)(b) contact-exemption, asserting that he had been “prohibited by judicial order from visiting or communicating with the child,” namely a rule of supervision (he was on ES at the time) that he have no contact with any minor “without prior agent approval” and an approved adult chaperone. Even if this rule was tantamount to a § 48.415(1)(b) “judicial order,” the argument fails, “because there is no evidence that the rule prohibited Lee H. from visiting or communicating with Isaiah H., and there is powerful evidence to the contrary that Lee H. decided not to pursue DOC approval and contact,” ¶30. Carla B. v. Timothy N., 228 Wis. 2d 695, 598 N.W.2d 924 (Ct. App. 1999), applied (parent can’t be penalized for failing to perform prohibited act; there, visitation conditioned on therapy, but parent quit seeing therapist, therefore couldn’t invoke the no-contact exemption), ¶¶31-35.

State v. John R. Nelson, 2011AP125-CR, District 2, 12/7/11

court of appeals decision (1-judge, not for publication); for Nelson: John A. Nelson; case activity

The officer’s observation that Nelson’s vehicle intruded “somewhat into the intersection” before stopping provided reasonable suspicion for a stop-sign violation, § 346.46(1). The stop wasn’t unnecessarily prolonged by summoning a drug dog while the officer ran record checks and issued a warning ticket.

¶9        The circuit court found that Ray did not unnecessarily delay the traffic stop in order to give the K-9 unit more time to arrive, as its review of a tape of the traffic stop revealed that Ray did not take an unduly long time with his paperwork while he was awaiting the K-9 unit.  As this finding was not clearly erroneous, we affirm the circuit court’s conclusion that Ray did not unlawfully extend the stop.  See State v. Walli, 2011 WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898 (a circuit court’s findings of fact based on testimony and a video police recording are reviewed under the clearly erroneous standard of review).[2]

Unnecessary delay / unduly long time is a finding of historical fact? The basic framework is that historical facts form the premises for “conclusions of ultimate facts,” with the reviewing court deferring to trial-level findings of historical fact and independently determining whether those facts support the ultimate conclusion. E.g., State v. Martwick, 2000 WI 5, ¶¶16-17, 231 Wis. 2d 801, 604 N.W.2d 552. Put otherwise, it is long-settled and beyond dispute that, “In reviewing a denial of a motion to suppress, we will uphold the circuit court’s findings of fact unless they are clearly erroneous. Whether those facts satisfy the constitutional requirement of reasonableness is a question of law, which we review de novo,” State v. Young,212 Wis. 2d 417, 424, 569 N.W.2d 84 (Ct. App. 1997). Shouldn’t unnecessary delay be a conclusion, not a finding?

Potentially complicating the matter, the entire incident was captured on video, but the court cryptically notes: “we were unable to watch the police video of the stop, as the video included in the record was not compatible with the court’s DVD player. The parties do not, however, dispute the timeline of the events.  We therefore rely on the transcript of the police stop and testimony from the trial to conclude that the circuit court’s findings were not clearly erroneous,” footnote 2. Not that it matters in this particular case – it appears that the crucial facts, what happened when, were established by the suppression hearing transcript, ¶¶2-3 – but that the court of appeals might not have access to the same hardware as the circuit court is something the practitioner may want to keep in mind.

The undisputed facts show that the stop occurred at 12:16, with the dog summoned at 12:22, arriving at 12:32 and reacting at 12:35. Was the detention unnecessarily prolonged? That depends in large part, doesn’t it, on how long it took to write up the warning ticket? According to Nelson’s Brief (p. 7), the ticket had been written before the dog arrived. It may be that the detention was prolonged, but only minimally so and therefore not unreasonably. But that ought to be a matter for independent analysis, not knee-jerk deference to the trial court’s conclusion.

on review of unpublished decision; for Cain: Faun M. Moses, SPD, Madison Appellate; case activity; prior post

Guilty Plea Procedure – Defendant’s Denial of Element / Manifest Injustice

Issues (composed by On Point): 

1. Whether, if a defendant at the guilty-plea proceeding explicitly denies the existence of an elemental fact, the trial court must decline to accept the plea.

2. Whether, notwithstanding erroneous acceptance of a guilty plea in the face of the defendant’s denial of an element, the defendant’s subsequent admission of the element at sentencing operates to cure the error.

Cain was charged with “manufacturing” a minimum of 5 marijuana plants (a Class H felony; fewer than 5 plants = Class I). At the plea proceeding, he was informed of the Class H threshold, but he explicitly said he had 4 plants, a discrepancy court and counsel ignored and Cain didn’t press. Counsel stipulated to the complaint, which alleged 16 plants, so there was a factual basis. The court of appeals held that the trial court was required to reject the plea when Cain explicitly denied this offense element. (The number of plants might be thought a penalty enhancer, but the court quite properly treats it as an element, because “the fact is one on which Cain has a right to jury trial,” ¶26 n. 9.) However, at sentencing a couple of months later, Cain explicitly admitted having 5 plants, an amount which cleared the Class H threshold – this admission, the court held, amounted to “a subsequent, direct admission to the elemental fact before the court pronounces sentence.  This was an explicit ratification of the plea,” ¶42. Therefore, “Cain did not prove by clear and convincing evidence that withdrawal of the no contest plea is necessary to correct a manifest injustice,” id. We’ll see. Interesting problem, ably discussed by the court of appeals, whether or not you agree with its ultimate conclusion.

Nielsen sanction after show cause (summary order, not citable), on remand from State v. Nielsen, 2011 WI 94

Sanction for Incomplete Brief Appendix 

The appellant’s brief argued that the circuit court failed to fulfill the mandate articulated in State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, to explain the rationale for the particular sentence imposed. The appendix included only a select portion of the circuit court’s sentencing remarks; just three of the eight transcript pages that contained the circuit court’s remarks. Counsel for the appellant explains that only a small portion of the circuit court’s sentencing remarks were included in the appendix because the appellate issue was narrowly focused on something that should have occurred at sentencing but did not and the pages provided in the appendix were the one where the occurrence should have logically occurred. Counsel further explains that she did not blithely or negligently throw pages into the appendix but included just the transcript pages counsel earnestly believed were essential to understanding the issue raised. Counsel suggests that she and other attorneys in her office are now on notice to take a more expansive and inclusive view of the required appendix content such that future “misunderstandings or disagreements” regarding content will be minimal.

Although we appreciate that counsel deliberated on the content of the appendix, there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue. It is long established that when reviewing a sentence, this court looks to the totality of the sentencing court’s remarks. See State v. Stenzel, 2004 WI App 181, ¶9, 276 Wis. 2d 224,688 N.W.2d 20; State v. Timmerman, 198 Wis. 2d 309, 318, 542 N.W.2d 221 (Ct. App. 1995). Additionally, the decision in State v. Bons, 2007 WI App 124, ¶21-25, 301 Wis. 2d 227, 731 N.W.2d 376, explained the importance of providing a meaningful appendix in compliance with WIS. STAT. RULE 809.19(2), and signaled that this court intended to enforce the appendix certification rule. See also Bons, ¶29 (Brown, J. concurring).

The appendix to the appellant’s brief was inadequate. The $150 sanction is warranted.

(Bolding supplied.)

This is a summary order which may not be cited “as precedent or authority,” § 809.23(3)(a). Not that you’d want to. The nicer question is whether the court itself will cite this uncitable order next time it brings the hammer down on an attorney for compiling an appendix that isn’t up to the court’s standards. But that is a question for another day. Today, some brief commentary on the court’s exercise of discretion, regarding amount of the fine.

It’s not at all clear how or why the court derived the figure of $150. True, that was the sanction meted out in Bons, but there (not a sentencing issue, by the way), the appendix apparently failed to include the trial court decisions at all, thus was “in flagrant violation of the” certification requirement, 2007 WI App 124, ¶20. As the concurrence in that case put it, “inundating us with reams and reams of material bearing no relation to the precise issues before the court is another practice that should be avoided,” (¶29, conc. op., emph. supp.). Same, re: S.C. Johnson v. Morris, 2010 WI App 6, ¶5 n. 1 and Werner v. Hendry, 2009 WI App 103, ¶11; and State v. Peterson, 2008 WI App 140, ¶6 n. 5. So it may be true, without exhaustively researching the matter, that the court has consistently imposed fines in the amount of $150 for violating the appendix / false-certification rule. At the same time (again, without taking the time for painstaking analysis), it may well be that in each such instance the violation was truly “flagrant,” though in the end that doesn’t really matter – the problem is the court clearly means to mete out identical punishments of $150 regardless of the nature of the violation. That is, whether you’ve committed a flagrant or good-faith violation, you’re going to be fined the same amount. Strike you as a sound exercise of discretion? “A court should use caution in imposing sanctions against attorneys. … Mistakes by attorneys can often be corrected without sanctions if they are isolated mistakes resulting from inexperience, inadvertence or misunderstanding. … Furthermore, circuit courts should tailor sanctions to the severity of the misconduct.” Anderson v. Circuit Court for Milwaukee County, 219 Wis.2d 1, ¶22, 578 N.W.2d 633 (1998). When it comes to the appendix, the court is a hammer and you are a $150 nail.

This discussion has assumed, of course, that there was a violation. But how can you be certain? If the court isn’t minded to engage in granular decision-making with respect to the amount, how can you be sure it did so with respect to the violation itself? Going forward, the lesson is that “there is no reason to omit the entirety of the sentencing court’s remarks when the exercise of sentencing discretion is at issue.” (Well, that and the idea that the court equates “no reason to omit the entirety” with “flagrant violation.”) In other words, if your appeal involves sentencing review, your appendix should always and necessarily include all the judge’s sentencing remarks. And getting that word out is the reason for posting an uncitable order.

State v. Damon Keith Sutton, 2012 WI App 7 (recommended for publication); for Sutton: Maayan Silver; case activity

Reasonable Suspicion – “Frisk,” of Vehicle

Reasonable suspicion supported “protective search” of Sutton’s van following routine traffic stop: While the officer ran a document check, Sutton remained in the van. The officer discerned “distinct rocking motions,” which the officer’s training and experience informed her represented “someone who may be trying to retrieve or conceal a weapon.”

¶8        Based on her testimony, Officer Bartol had a legitimate reason to be concerned that there might be a gun or other weapon in the van because it seems highly unusual, and did to Officer Bartol, for the large conversion van to make two, large and distinct “rocking motions” when the driver had just been stopped by a marked squad car, and asked by one of the officers about his probation or parole status.  The minimal intrusion of looking into the van was more than outweighed by the need for the officers to assure themselves that there was no gun or other weapon in the van, especially because Sutton was not under arrest and could freely return to the van.  See State v. Williams, 2010 WI App 39, 23, 323 Wis. 2d 460, 473, 781 N.W.2d 495, 502 (Officers had “an immediate safety interest in verifying” that there was not a weapon in the car because a person stopped but not under arrest “‘will be allowed to return’” to the car.) (quoted source omitted). Cf. Arizona v. Gant, 556 U.S. 332, ___, 129 S. Ct. 1710, 1723 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”); State v. Smiter, 2011 WI App 15, ¶18, 331 Wis. 2d 431, 439, 793 N.W.2d 920, 924 (Ct. App. 2010) (Police officers could search the interior of a car for evidence of the crime for which passenger was first arrested, even though the passenger could not have returned to the car.). Once Officer Bartol was lawfully looking in the van, she could also look at what was in plain sight—here, the opaque blue vials—without first getting a search warrant, but we agree that she should not have opened them.

Standard of review, “protective search” of car, recited, ¶7.

Probable Cause – Plain View – Opaque Container 

Opaque vials, discerned during a protective search of Sutton’s vehicle, were themselves in “plain view” but not, given their opacity, their contents. Because the officer did not have probable cause to associate the vials with criminal activity, she could not open them without a search warrant.

¶10      “Probable cause” requires an assessment of “whether, under the totality of the circumstances, given all the facts and circumstances … there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  State v. Sveum, 2010 WI 92, ¶24, 328 Wis. 2d 369, 390–391, 787 N.W.2d 317, 327 (quotation marks and quoted sources omitted).  This “is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior.”  Id., 2010 WI 92, ¶24, 328 Wis. 2d at 391, 787 N.W.2d at 328 (quotation marks and quoted sources omitted).  Officer Bartol explained why she believed the opaque cylinders held illicit drugs:

•           She had previously been involved “[b]etween five and six times” in the arrest of someone for having prescription drugs for which the person did not have a prescription.

•           “The pills are generally transported in a clear orange with white cap prescription bottle containing no information on it or they are contained in a container in which people believe that police will not think is a prescription.”

The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like.  That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon.  Cf. Denk, 2008 WI 130, ¶¶59–60, 315 Wis. 2d at 27–28, 758 N.W.2d at 786–787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because:  (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.).  Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W.2d 568 (officers could conduct warrantless search of passenger’s duffle bag because they had probable cause believe to believe it contained evidence material to crime for which driver arrested), distinguished, ¶11 n. 2.