On Point

Racine County HSD v. Bobby G. H., 2011AP795, District 2, 11/16/11

court of appeals decision (1-judge, not for publication); for Bobby G.H.: William E. Schmaal, SPD, Madison Appellate; case activity

Bobby’s phase-1 admission to termination of parental rights on the ground of failure to assume responsibility didn’t require that the trial court hear testimony before accepting the admission.

court of appeals certification, affirmed 2012 WI 73; for Ziegler: Christopher William Rose; case activity

Interfering with Custody, § 948.31(2) 

Issue certified: Whether the court of appeals’ prior interpretation of § 948.31(2) to require “initial permission” from the parent should be overruled, State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332.

§ 948.31(2) addresses “[w]hoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … without the consent of the parents[.]” Ziegler’s conviction is based on the “withholds a child” alternative, after he allowed a runaway minor to stay with him a few days. He argues he can’t be guilty of this particular offense, because “withholds a child” requires parental permission to take or look after the child, and indisputably no such permission was given. This is where Bowden comes in. There, the court of appeals rejected Bowden’s argument that the withholding element requires parental presence, 2007 WI App 234, ¶18:

The State posits that the withholding method of interference focuses on permission, not being in the parent’s presence.  We agree. The withholding method addresses a situation where the person who takes the child has some initial permission to do so.  The other two methods speak to situations where the parent has given no permission to the person who “causes a child to leave” or “takes a child away.”  See WIS. STAT.§ 948.31(2).  Bowden’s argument that “causes … to leave” means from the parent’s actual presence suggests that parental custody ends when the child is out of the parent’s presence.  Without commenting on the merit of that position, to adopt it would require that we add words to the statute that are not there.  We decline to do so.   See Samuel, 240 Wis. 2d 756, ¶35.

The Certification rejects the State’s claim that this language is dicta; therefore, the court is presently bound by it. Ziegler was convicted of “withholding” the child – but she was a runaway, so “initial permission” obviously couldn’t be proven, and if it is indeed an element, then Ziegler can’t be guilty of this particular offense. But, having bought the State’s argument in Bowden, the court now comes down with a severe case of buyer’s (and the State, seller’s) remorse:

Wisconsin Stat. § 948.31(2) states that “[w]hoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child’s parents … without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony.”  We agree with the State that there is nothing in the statutory language to indicate that in order to withhold custody from a parent, a defendant must have had “initial permission” from the parent to take the child.  Compare Bowden, 306 Wis. 2d 393, ¶18, to § 948.31(2).  Bowden’s interpretation seems to add language to the statute (and an element to the crime), which is something we may not do.  See Cavey v. Walrath, 229 Wis. 2d 105, 111, 598 N.W.2d 240 (Ct. App. 1999).  However, despite our disagreement with Bowden’s interpretation, we are bound by it unless it is dicta.  See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246, 256 (1997) (“only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals”).[1]

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[1]  We candidly admit that two of the three judges to this certification were members of the panel in State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332.  We also point out that the condition precedent of “initial permission” as a necessary component of “withholding a child more than 12 hours” was the argument of the State, which argument we agreed with and adopted.  Of course, now the State expresses a contrary view

Well. Buyer’s remorse might have a certain valence under the UCC, but what about when it comes to after-the-fact construction of offense elements? Note the court of appeals’ prim declaration that “we may not” add language to a statute. That’s fine, but nor may the court simply amend a binding definition of an offense in order to sustain a conviction. E.g., Cole v. Young, 817 F.2d 412, 421 (7th Cir.1987), discussing Marks v. United States, 430 U.S. 188 (1977), and Bouie v. City of Columbia, 378 U.S. 347 (1964):

Marks makes two points pertinent to this case: first, a decision overruling a prior interpretation of a criminal statute is (or at least is ordinarily) “unforeseeable” under Bouie; and second, the fact that a judicial construction restores the correct understanding of the law is of no consequence in determining whether its retroactive application violates due process.

In light of these principles, it is clear that the State v. Cole court was not free to overrule Kirby retroactively and apply a newly enlarged definition of mayhem to Cole’s case. Even if the court had rejected Kirby’s holding that great bodily harm is an element of mayhem, the principle of fair warning would have required that the decision not be given retroactive effect. Retroactivity would have been permissible only if the repudiation of Kirby was somehow “foreseeable,” which it almost certainly was not. Given the ample indications that State v. Cole was not intended to overrule Kirby, and the considerable due process problems raised by such an interpretation, we conclude that State v. Cole did not overrule Kirby.

That is, the Certification utterly fails to acknowledge this due process obstacle to affirmance. Hard to believe the supreme court won’t.

court of appeals decision (1-judge, not for publication); for Wells: Matthew Murray; case activity

Plea Bargaining – Judicial Participation 

Neither the trial court’s allusion to the disposition it would impose if Wells pleaded guilty (“I’ll probably go along with the recommendation,” but proceeding to trial “would be a whole different ballgame”) nor its own assessment of the representation advice it would have given (“I’d probably tell that client to take the deal … because you got [] big exposure”) amounted to prohibited judicial participation in the plea bargaining process:

¶10      We conclude that, taken in context, these comments do not reveal an improper participation in the plea negotiation.  First, given that, at the time of the hearing, Wells had more than ninety days’ sentence credit and a disorderly conduct conviction’s maximum imprisonment penalty is ninety days’ jail, any allusion the court may have made to imposing a time-served disposition was a statement of fact and not improper.

¶11      Second, the court did not advocate for a particular plea agreement when it stated that it would “probably” advise a client facing big exposure to accept a plea that would allow him to be released immediately.  Taken in context, this comment occurred after Wells indicated to the court that he was torn because he felt the court was telling him to go to trial but his attorney was advising him to take the deal.  Immediately following this comment, the court informed Wells that it was not the court’s job to tell him whether he should plead, rather, the court works to make sure that Wells understands his options and that whatever he chooses is his choice alone, not his attorney’s. Taken in context, we conclude the court’s comments as a whole reflect an exhaustive effort on the part of the court to ensure that Wells’ decision to plead was in fact voluntary.

The operative rule is set by State v. Williams, 2003 WI App 116, ¶16, 265 Wis. 2d 229, 666 N.W.2d 58: “a defendant who has entered a plea, following a judge’s participation in the plea negotiation, is conclusively presumed to have entered his plea involuntarily and is entitled to withdraw it.” However, this rule doesn’t “encompass all comments a judge might make regarding the strength of the State’s case or the advisability of a defendant giving consideration to a disposition short of trial,” State v. Hunter, 2005 WI App 5, ¶8, 278 Wis. 2d 419, 692 N.W.2d 25. Placement of the comments here within the exception recognized by Hunter seems a stretch.

Langlade County Dept. of Social Services v. Rebecca D., 2010AP2497, District 3, 11/15/11

court of appeals decision (1-judge, not for publication); for Rebecca D.: William E. Schmaal, SPD, Madison Appellate; case activity

¶19      On the facts adduced at trial, Rebecca clearly failed to assume parental responsibility for Anthony, pursuant to the standards set forth in Wis. Stat. § 48.415(6). Anthony was nearly five months old when he was removed from Rebecca’s home.  At the time of trial, he was nearly three years old and had been in foster care for two and one-half years.  During those two and one-half years, Rebecca failed to meet the conditions for Anthony to be returned to her home.  Rebecca failed to maintain regular contact with Fischer about Anthony’s well-being, and Fischer frequently had to call Rebecca to find out why Rebecca had not been in touch with the County, whether Rebecca wanted to visit Anthony, and whether she was complying with the conditions in the CHIPS order.

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¶22      On these facts, it is clear that Rebecca did not have a “substantial parental relationship” with Anthony over the course of his life.  See Wis. Stat. § 48.415(6)(a). Rebecca simply did not, under any stretch of the imagination, “accept[] and exercise … significant responsibility for [Anthony’s] daily supervision, education, protection and care.”  See Wis. Stat. § 48.415(6)(b) (emphasis added).  Instead, after the first five months of his life, she visited him sporadically, failed to maintain regular contact with him, and failed to keep in touch with the County about his well-being and the steps she needed to take to comply with the CHIPS order.  Although she stated she could not visit Anthony because she did not have money for gas, the evidence showed that she failed to take advantage of other transportation opportunities.  It took the jury only sixteen minutes to conclude Rebecca had failed to assume parental responsibility for Anthony.  Rebecca’s conduct clearly falls within the core proscriptions of Wis. Stat.§ 48.415(6).  Accordingly, she cannot challenge the statute on vagueness grounds.  See Ruesch, 214 Wis. 2d at 561.

¶25      Rebecca concedes that, aside from some minor deviations, the court’s instruction was “essentially in conformity” with the applicable standard jury instruction,Wis JI—Children 346.  However, she argues that, in light of our supreme court’s holding in Tammy W-G., the court should have instructed the jury that it must consider “the reasons why [Rebecca] may not have had a substantial parental relationship with Anthony H. during his entire life[.]”  See Tammy W-G., 333 Wis. 2d 273, ¶3 (The jury’s analysis under Wis. Stat. § 48.415(6) “may include the reasons why a parent was not caring for or supporting her child[.]”).

¶26      We conclude the circuit court’s instruction on failure to assume parental responsibility did not prevent the real controversy from being fully tried.  At trial, Rebecca testified about her reasons for failing to assume parental responsibility for Anthony.  Neither the court nor the County made any effort to prevent Rebecca from introducing this evidence or from arguing that it justified her failure to maintain contact with Anthony.  Specifically, Rebecca testified that the reason she failed to visit Anthony regularly for two and one-half years was that she lacked money to fuel or repair her car.  However, Rebecca did not explain why she failed to take advantage of transportation provided by the County and Anthony’s foster mother.  She did not explain why she failed to ask her boyfriend for help with transportation, or why she lent her income tax refund to her daughter’s father instead of using it to pay for gas or car repairs.  Rebecca also failed to explain why her transportation problems prevented her from calling Anthony or sending him cards and presents.  We agree with the circuit court that, even without a jury instruction, “there was testimony in the record that addressed [Rebecca’s] concerns,” and Rebecca’s reasons for failing to assume parental responsibility for Anthony were “essentially before the jury during the trial.”  A new trial in the interest of justice is not warranted.

State v. Jamie L. Salonen, 2011 WI App 157 (recommended for publication); for Salonen: Robert J. Wells, Jr.; case activity

¶1        The trial court in this case granted Jamie L. Salonen’s motion to suppress evidence obtained after she asked to leave the scene of a roadside stop of a vehicle in which she was a passenger, which request was denied by police.  A passage in Arizona v. Johnson, 555 U.S. 323, 333 (2009), explains that a lawful roadside stop “ordinarily” begins when a vehicle is pulled over for a traffic violation and ends when the police no longer have further need to control the scene, at which time the driver and passengers are free to leave.  Therefore, the State asserts that Salonen’s request to leave—during the stop, but after she had given identification and police found no warrants were outstanding for her—had no basis in law.  We reverse, but we reject the theory that the Johnson language creates a bright-line rule that police always have the authority to detain passengers for the duration of a roadside stop.  Reading Johnson as a whole, it leaves the door open for exceptions to the general rule that passengers are reasonably detained for the duration of a stop.  Nonetheless, we hold that Salonen’s stop was reasonable under the totality of the circumstances.

Almost 12 minutes into the stop, while the officer was still writing the citation, Salonen tried to leave the scene and was told she couldn’t. Almost 3 minutes later, a dog alerted on the seat where Salonen had been sitting. A subsequent search of the car led to her arrest. First things first: a dog sniff isn’t a search – ¶9, citing State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748 – and the basis for the stop isn’t in question, so suppressibility turns on whether the police unnecessarily prolonged Salonen’s detention. And that question turns on whether her request to leave the scene should have been honored.  As the blockquote above indicates, although the court rejects the idea that the police may always detain a passenger for the duration of a routine traffic stop, it recognizes that such a detention is “ordinarily” proper, ¶¶10-13. Consistent with the latter idea, the court articulates a balancing test that, because ti heavily weights officer safety, will typically come down in favor of the intrusion (as here):

¶14      Applying the balancing test here, we are satisfied that the officer safety component outweighed the minimal intrusion Salonen was subjected to by ordering her to stay on the scene.  When Salonen asked to leave, she was speaking with a backup officer who knew only that he was called to the scene to assist a K­9 officer in securing the scene for a dog sniff.  So, the officer to whom Salonen was speaking knew only that the stop had some relationship to the possibility of illegal drugs being involved.  As a matter of common sense, he obviously saw his job as being to keep the scene secure while his colleagues investigated whether evidence of a more serious crime might be uncovered. As such, based on the reasoning in Johnson and Wilson, the “motivation of a passenger to employ violence to prevent apprehension of such a crime [was] every bit as great as that of the driver.” Johnson, 555 U.S. at 331-32 (quoting Wilson, 519 U.S. at 414)).  It would be unreasonable to expect this back-up officer to make the decision that there was no longer a police safety component given the limited information that this officer had.  He simply was not in charge of the scene.

¶15      And it is not as if the officer’s refusal created some monumental intrusion to Salonen.  The resulting dog sniff kept Salonen on the scene for a maximum of two minutes and fifty-five seconds more before the dog revealed drugs near her seat in the car.  During that time, she was simply told to remain at the scene, without being put in handcuffs or having her liberty restrained in any other way.  The officer assured her that if she was late to work, he would be able to get her boss an excuse.  So, the intrusion on Salonen was minimal.  We are convinced that the stop fell within the parameters of what Johnson says is “ordinarily” reasonable.  We see no facts in this case that warrant an exception to Johnson’s general guideline that the detention of a passenger ordinarily remains reasonable for the duration of the stop.  See Johnson, 555 U.S. at 333.  We therefore reverse the trial court’s decision granting Salonen’s motion to suppress and remand for further proceedings.

Continued detention of the passenger is “ordinarily” reasonable: officer safety is paramount, and intrusion on the passenger merely “incremental.” In other words, Salonen began with two strikes against her. The length of the delay (“a maximum of two minutes and fifty-five seconds more”) was strike three. De minimis non curat lex (the law doesn’t concern itself with trifles), and the court perhaps thought the length of this delay a mere trifle. Compare, e.g., Arias, 2008 WI ¶47 (delay of routine traffic stop by 78 seconds so dog sniff could be performed reasonable: “The incremental extension of time expended in this stop that was occasioned by the dog sniff was a brief 78 seconds”).

City of Mequon v. Michael R. Wilt, 2011AP931, District 2, 11/9/11

court of appeals decision (1-judge, not for publication); for Wilt: Walter Arthur Piel, Jr.; case activity

Because the trial court in this bench trial did not rely on the breath test result in finding Wilt guilty of OWI, therefore his argument that the PBT result was inadmissible need not be reached, ¶¶16-17. As to whether the evidence is sufficient to sustain the conviction absent the test result:

¶23      Proof of impairment was sufficient and established by clear, satisfactory and convincing evidence:  Gaidish arrived ten minutes after being dispatched to a one-car accident.  Gaidish saw Wilt standing next to a vehicle on the side of the road in a ditch with severe front end damage.  Wilt appeared to be confused, was unsteady on his feet, had bloodshot, glassy eyes and smelled of alcohol.  Wilt admitted to driving the vehicle, said he was “trying to get home,” changed his story several times and finally admitted that he was coming from a gentleman’s club where he had consumed three glasses of wine three hours prior.  Gaidish gave Wilt every accommodation during the investigation:  he allowed Wilt to perform the field sobriety tests inside due to the rain and, even though Wilt told Gaidish he could perform the standard balance tests, Gaidish administered two nonbalance tests in case the MS was a factor in performing the balance tests.  Wilt ultimately failed four out of the five field sobriety tests he was asked to perform.  And, there was no evidence from Wilt at the time or during his testimony at trial to show that the MS affected his ability to perform the tests.

¶24      We are satisfied that the evidence is sufficient to show that Wilt was under the influence of an intoxicant rendering him incapable of safely driving at the time he drove his vehicle into a guardrail and landed it in a ditch.

State v. Alok Kumar, 2010AP2703-CR, District 1, 11/8/11

court of appeals decision (not recommended for publication); for Kumar: Robin Shellow, Michael E. O’Rourke; case activity

Sentence to presumptive minimum (5 years confinement) for using a computer to facilitate a child sex crime, § 948.075(lr), is upheld as a proper exercise of discretion, against Kumar’s arguments that the sentencing court: didn’t permit him to show sentences imposed by other circuit courts in presumptive-minimum cases; treated the presumptive minimum sentence as a “mandatory minimum”; and over-emphasized the crime’s seriousness. “A circuit court has broad sentencing discretion and may give the various sentencing factors the weight it deems ¶10. The sentencing court credited Kumar with the good he had done, as weighed against the need for deterrence, ¶11.

¶12      Kumar argues that the circuit court put too much emphasis on the crime’s seriousness.  We disagree.  “Imposition of a sentence may be based on one or more of the three primary factors after all relevant factors have been considered.”  State v. Spears, 227 Wis. 2d 495, 507–508, 596 N.W.2d 375, 380 (1999).  The circuit court has the discretion to give more weight to one factor than others and to base the sentence on any or all of the factors.  See State v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183, 192 (Ct. App. 1984).  That the circuit court put significant weight on the crime’s seriousness and the need to protect potential victims of other sexual predators does not make its sentence wrong or mean that it erroneously exercised its discretion.^[3]  Further, Kumar’s contention that the circuit court should have allowed him to show what other judges sentenced other persons convicted of similar crimes is without merit.  See State v. Tappa, 2002 WI App 303, ¶20, 259 Wis. 2d 402, 412, 655 N.W.2d 223, 228 (circuit court not required to base sentencing decision on “sentences of other defendants”); State v. Toliver, 187 Wis. 2d 346, 362–363, 523 N.W.2d 113, 119 (Ct. App. 1994) (disparity of sentences not improper when individual sentences are based on three main sentencing factors); State v. Curbello-Rodriguez, 119 Wis. 2d 414, 435–436, 351 N.W.2d 758, 768–769 (Ct. App. 1984) (each defendant should have individualized sentence even though various defendants may have committed the same statutory offense).

Finally, the record doesn’t show that the sentencing court in fact treated the presumptive as a mandatory minimum, ¶15.