On Point

State v. Christina L. Contizano, 2011AP477-CR, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Contizano: Robert C. Howard III; case activity

At Contizano’s sentencing for obstructing, based on lying to the police about her daughter’s location, the trial court didn’t erroneously exercise discretion in allowing Contizano’s ex-husband to advocate as a “victim” of the offense, in favor of a term of incarceration.

¶7        We conclude the court did not erroneously exercise its discretion when it considered the Walworths’ statements at sentencing.  Wisconsin Stat. § 972.14(3)(a) requires that the sentencing court allow a victim to make a statement to the court prior to sentencing if the victim wants to make a statement.  Wisconsin Stat. § 950.02(4) defines the term “victim” as that term is used in § 972.14(3)(a).  Specifically, it provides that the term “victim” includes: (1) “A person against whom a crime has been committed”; and (2) “If the person specified in subd. 1. is a child, a parent, guardian or legal custodian of the child.”  § 950.02(4)(a)-(b).  In addition to mandating that the court permit a victim to make a statement at sentencing, Wis. Stat. § 972.14(3)(a) also provides that the court may allow “any other person” to make or submit a statement.

¶8        Contizano provides no persuasive reason why the Walworths cannot be considered victims under that statute.  Instead, Contizano notes that “[m]any crimes define intentional acts done to or directed at a certain victim.  The crime of obstruction does not refer to an act done to a specific victim.”  However, Wis. Stat.§ 972.14(3)(a) does not limit the “victims” that may make a statement at sentencing to those that are identified in the statute defining the crime.

Nor, even if the challenged statements were made by “any person” other than a victim, as authorized by § 972.14(3)(a), did the sentencing court give them undue weight; accordingly, the sentence wasn’t an erroneous exercise of discretion no matter how authorization for the statements, ¶¶10.

Plea Bargain – Victim’s Allocution 

¶11      We next address Contizano’s contention that the prosecutor’s statement to the court referring to the Walworths as “victims” violated the plea agreement. When we review an alleged breach of a plea agreement where the facts are undisputed on appeal, the question is one of law to be reviewed de novo.  See Harvey, 289 Wis. 2d 222, ¶31.  An “end-run” around a plea agreement constitutes a breach, just as an explicit repudiation does.  Id., ¶32.

¶12      We conclude the State did not breach the plea agreement by referring to the Walworths as “victims.”  Contizano concedes that the prosecutor never mentioned the charges that the State had agreed not to discuss pursuant to the plea agreement.  The prosecutor merely responded to the court’s question as to whether any victims wished to make a statement at the hearing.  Contizano has not presented a developed argument explaining why this response was either an explicit repudiation or an “end-run” around the terms of the plea agreement.  To the extent Contizano may be suggesting that the prosecutor was involved in bringing the Walworths to court so that they or their attorney could make comments that the State was not permitted to make under the plea agreement, there are no facts of record that support this conclusion.

The victims (to use the court’s label) asked for 9 months in jail, ¶4. Not clear, from the opinion, just how or whether the plea bargain restricted the prosecutor’s allocution. Assuming that the prosecutor couldn’t have urged the same result as the victims, then as the court suggests, the question would be the level of State involvement in the victims’ allocution. See, State v. Clement, 153 Wis. 2d 287, 302, 450 N.W.2d 789 (Ct. App. 1989) (“The plea agreement applied to the prosecutor’s recommendation alone. There is no evidence that the prosecutor advised or encouraged the victim and her fiance to recommend the maximum sentence.”).

Kathleen N. v. Brenda L. C., 2010AP2737, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Brenda l.C.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Brenda isn’t entitled to a new TPR trial in the interests of justice, notwithstanding a line of inquiry that went to the respective financial capabilities of Brenda and her sister’s family (which sought the termination). “The evidence established that Brenda had last seen Samantha approximately six months prior to the hearing at a family gathering and had only spoken to Samantha at that event for a few minutes, Samantha’s last communication with Samantha on Samantha’s birthday back in January 2010.” The jury was properly instructed on the “questions it was required to answer in determining whether Brenda had abandoned Samantha and/or failed to assume parental responsibility for her,” and presumptively followed those instructions – nothing in the improper line of inquiry supports the idea the real controversy wasn’t tried, ¶¶17-18.

Counsel’s failure to object to the evidence discussed immediately above didn’t prejudice Brenda, within the meaning of the test for ineffective assistance of counsel. Nor was Brenda prejudiced by a failure to investigate the number of times Brenda had seen the child at family gatherings – even if she could have used this to defend against the abandonment allegation, it wouldn’t have affected the separate allegation of failure to assume parental responsibility, ¶26.

¶30      Brenda contends that she is entitled to a new dispositional hearing because the court, in deciding to terminate Samantha’s parental rights, considered an improper factor—the recommendation by an inappropriately appointed GAL that her parental rights be terminated.  Relying on Wis. Stat. § 48.235(1)(g), which states that a court “shall appoint a guardian ad litem for a parent who is the subject of a termination of parental rights proceeding” if an examination shows the parent to be incompetent, Brenda argues that her GAL was not properly appointed because the circuit court did not first conduct a competency determination.  Brenda’s reliance, however, is misplaced.  Section 48.235(1)(a) grants the circuit court discretion in appointing a GAL “in any appropriate matter” under  ch. 48.  See also, Judicial Council Note, 1990, § 48.235 (stating subsection (1) “indicates when a guardian ad litem is to be appointed, leaving broad discretion to the court for such appointments.”)

¶31      A court properly exercises its discretion if the record shows that the court exercised its discretion and a reasonable basis exists for its determination.  Tralmer Sales & Serv., Inc. v. Erickson, 186 Wis. 2d 549, 573, 521 N.W.2d 182 (Ct. App. 1994).  Here, the circuit court was aware that Brenda is cognitively disabled.  In exercising its discretion to appoint the GAL, the court noted that the appointment of the GAL would “serve as a great benefit to the Court.”  Regardless of whether Brenda was technically incompetent, her cognitive disability was a reasonable basis for the court to appoint a GAL under Wis. Stat. § 48.235(1)(a).  Accordingly, this court holds that the circuit court did not erroneously exercise its discretion in appointing the GAL and, thus, that the court’s reliance on the GAL’s recommendation was not an improper factor upon which to rely.

State v. Tammi Zellmer, 2010AP1986, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Zellmer: John D. Hyland; case activity

Probable cause to believe Zellmer was operating under the influence supported her arrest: she was speeding; the time, 2:50 a.m., was close to “bar time”; her eyes were glassy and bloodshot; she admitted to having drunk 2 beers and a mixed drink; her performance on field sobriety tests exhibited signs of intoxication. The court relies on County of Dane v. Sharpee, 154 Wis. 2d 515, 453 N.W.2d 508 (Ct. App. 1990) for its conclusion of probable cause.

State v. Tally Ann Rowan, 2010AP1398-CR, rev. granted 10/25/11

on certification request (District 3/4); for Rowan: LaZotte, Paul G.; case activity

Issue (from Certification): 

The issue presented by this appeal is whether a sentencing court violated the Fourth Amendment or Wis. Const. art. I, § 11, by setting a condition of extended supervision that allows any law enforcement officer to search the defendant’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion.  While it is clear that a court may impose conditions of extended supervision that limit a defendant’s Fourth Amendment rights, the issue presented here is whether it is permissible to impose a condition that, in essence, eliminates those rights.  There are no cases in Wisconsin that address this issue.  Because this is a novel issue of statewide importance that is certain to recur, we hereby certify this appeal to the Wisconsin Supreme Court for its review and determination, pursuant to Wis. Stat. Rule 809.61 (2009-10).[1]

See prior post, here, for further discussion.

on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity

Plea Withdrawal – Collateral Attack – Deportation Consequences 

Issues (Composed by On Point):

1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.

2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.

From the briefs: Negrete pleaded guilty to second-degree sexual assault in 1992; he received probation, the term expiring in 1994. In 2010 he filed a motion to withdraw, asserting that he “is currently the subject of immigration proceedings,” and that he when he entered the plea didn’t know its “immigration consequences.” The trial court denied the motion without a hearing, in part because the plea questionnaire reflected that counsel had in fact informed Negrete of the immigration consequences of his plea. The plea transcript isn’t available, the court reporter having died in the interim. Negrete argued, at least in the court of appeals, that under caselaw controlling at the time of his plea, “if it were established that the court failed to give the defendant the statutory warning, … the defendant was required to establish that he did not have independent knowledge of the immigration consequences … before he would be permitted to withdraw his plea. See, e.g., … State v. Issa, 186 Wis. 2d 199, 209-210, 519 N.W.2d 741 (Ct. App. 1994).” He argues that in the absence of a transcript, his allegations accompanying the plea-withdrawal motion create an issue of fact that must be resolved by an evidentiary hearing. The State argues that the 18-year delay in bringing the motion is barred by the laches doctrine, Coleman v. McCaughtry, 2006 WI 49, ¶¶ 28-29, 290 Wis. 2d 352, 714 N.W.2d 900. The State goes on to argue that, on the merits, the trial court’s “finding of fact” based on the plea questionnaire, that Negrete was aware of deportation consequences, defeats his request for a hearing.

Nergrete’s sentence is long-expired, and when the defendant is no longer in custody, the court is “without jurisdiction” to entertain his § 974.06 motion, State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976). Yet, the State here doesn’t complain about absence of custody; indeed, the matter excites insufficient interest even to merit discussion. Possibly, the idea that Negrete is in custody by virtue of an impending deportation occasioned by this very conviction is so compelling that no discussion is necessary. In any event, the “substantive” issue (plea-withdrawal) appears to be exquisitely narrow and likely to affect a very small number of potential litigants: whether Negrete is entitled a hearing under caselaw principles that were overruled in 2002, State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. That is, it appears that, even though the consequence of deportation very much lies at the heart of this litigation, its resolution will not address Padilla v. Kentucky, or advance discussion of the direct / collateral consequences divide.

State v. John E. Ahern, 2011AP898, District 2, 10/26/11

court of appeals decision(1-judge, not for publication); for Ahern: Dennis M. Melowski, Sarvan Singh; case activity

The officer had reasonable suspicion to “stop” Ahern’s vehicle for a noncriminal traffic violation, namely that the vehicle was parked in a roadway without affording other traffic sufficient room to drive around it.

¶10      At the time of the stop, Vergos had reason to believe that Ahern was violating a noncriminal traffic law.  Although not articulated by Vergos at the suppression hearing, his testimony that the vehicle “wasn’t pulled over as far as it can go” and that “a portion of his vehicle appeared to be in the middle of the roadway” supports the finding that Ahern committed a traffic violation.[3]  See Wis. Stat. § 346.54(1)(d) (providing that “[i]n parallel parking, a vehicle shall be parked facing in a direction of traffic with the right wheels within 12 inches of the curb or edge of the street when parked on the right side”).  Vergos estimated that Ahern’s vehicle was approximately eighteen to thirty inches from the edge of the roadway and did not leave sufficient room for other traffic to drive around it.  After viewing the video, the circuit court found that Ahern’s SUV was parked eighteen inches from the edge of the pavement.  The law is well established that “an officer may make an investigative stop if the officer ‘reasonably suspects’ … that a person is violating the non-criminal traffic laws.”  County of Jefferson v. Renz, 231 Wis. 2d 293, 310, 603 N.W.2d 541 (1999) (citations omitted).  Vergos’ observation, when coupled with the time of day and location of the vehicle, provided sufficient reasonable suspicion to conduct an investigative stop.

The court rejects Ahern’s argument that the prevalence of texting – which requires that the driver pull off the road – negates reasonable suspicion: “even if texting, a motorist is obligated to pull over and safely park his or her vehicle in compliance with traffic laws,” ¶11. Moreover, “the potential availability of an innocent explanation does not prohibit an investigative stop,” id.

Aside: Ahern’s vehicle was already “stopped” before the officer’s arrival on the scene, so it might be said that the officer “seized” rather than “stopped” him. Probably best, though, to adopt the expression apparently favored as conventional, which is to label as a “stop” all Terry-type seizures. Still, it might be wondered just when and, more importantly how, the “stop” occurred here. The court takes a stop as given (¶10, “At the time of the stop”), without explaining why. On approaching Ahern’s already-stopped car, the officer “turned his emergency lights on,” ¶2 – is that enough to establish a “stop”? Hard to say, not, at least, without knowing a bit more. E.g., State v. Williams, 185 S.W.3d 311, 317 (Tenn. 2006) (“the defendant’s encounter with the officer was not voluntary, but rather occurred under a show of authority — the activation of the blue emergency lights — from which a reasonable person would not have felt free to leave”); State v. Lynch, 2011-Ohio-5502 ¶28 (“When a police officer pulls behind or beside a parked vehicle and activates his or her flashing lights, it is clearly a seizure within the meaning of the Fourth Amendment.”). Ahern then got out of his car, approached the squad and the officer told him to get back in his car, ¶¶2-3: that sort of police-ordered restriction on Ahern’s movement should be enough to amount to a “stop,” even if merely turning on the squad’s emergency lights didn’t.

State v. Kenneth M. Davis, 2011 WI App 147 (recommended for publication); for Davis: Robert R. Henak; case activity; reissuance after prior decision withdrawn

Several items of testimony, coming to light after trial, directly contradict the trial testimony of the main State’s witnesses, leading the court to conclude that the real issue in controversy – Davis’s alleged involvement in a drug-house robbery and murder of an occupant – wasn’t fully tried and a new trial is therefore required. These include:

• State witness Henderson (promoted at trial by the State as “truthful and credible”) admitted to postconviction witness Derrick Griffin that he committed the robbery, and named several other participants without mentioning Davis’s name: “Griffin’s testimony about Henderson’s admission directly contradicts Henderson’s testimony at trial,” ¶¶19-20.
• Henderson, similarly, told another postconviction witness (Reed) that Henderson was in jail for a shooting, and named two others – neither of whom was Davis – as participating; and, that Henderson was willing to testify against Davis though Davis wasn’t involved in the shooting: “Reed’s testimony directly contradicts Henderson’s trial testimony.  Henderson’s statements to Reed do not merely serve as impeachment evidence, but rather as affirmative evidence of Davis’s innocence,” ¶24.
• State witness Ringstad testified that Davis, a pretrial cellmate, admitted his participation in the crime but postconviction witness Winkler testified that before trial Ringstad said he had gone into Davis’s footlocker, rifled through his files, and planned to use that information to get better prison treatment: “Winkler’s testimony goes directly to the issue of Davis’s presence at the robbery and participation in Matthew’s murder.  This testimony, combined with the testimony already described, directly contradicts Ringstad’s testimony—a key element in the State’s case against Davis,” ¶29.

Davis gave an in-custody statement – a detective testified at trial that Davis admitted having been present at the robbery; Davis testified at trial and disputed the accuracy of the detective’s account, ¶33. This detail doesn’t affect the decision to grant relief: “we conclude that the evidence which the jury should have heard, but did not, made it impossible for the jury to weigh all appropriate factors in considering the importance of Davis’s properly admitted confession,” ¶34. (Davis also raises an Edwards violation, which the court discusses in passing without reaching the merits, ¶¶30-34; ¶36 (concurrence).)

If there is a theme, it is that the jury didn’t hear testimony that went to the very heart of (“directly contradicts”) the State’s theory. Thus, the court isn’t impressed by possible infirmities in the new-witness testimony, ¶20: “The State contends that Griffin’s testimony is ‘conflicting and confused.’ It is up to a jury to determine how much weight and credibility to give to Griffin’s testimony.  State v. Nelson, 2006 WI App 124, ¶52, 294 Wis. 2d 578, 718 N.W.2d 168.”

The holding is necessarily fact-specific, which is in the nature of interest-of-justice caselaw. But the test, of course, is a question of law and therefore recurrent and worth mention:

¶16      We possess a broad power of discretionary reversal pursuant to Wis. Stat. § 752.35, which provides authority to achieve justice in individual cases.  See Vollmer v. Luety, 156 Wis. 2d 1, 19, 456 N.W.2d 797 (1990).  We may exercise our power of discretionary reversal where it appears from the record that the real controversy has not been fully tried, or if it is probable that justice has for any reason miscarried.  See§ 752.35.[4]  We also “may exercise [our] power of discretionary reversal under the first part of Wis. Stat. § 751.06, without finding the probability of a different result on retrial [if we conclude] that the real controversy has not been fully tried.”  See State v. Hicks, 202 Wis. 2d 150, 160, 549 N.W.2d 435 (1996).  “‘[T]he real controversy has not been tried if the jury was not given the opportunity to hear and examine evidence that bears on a significant issue in the case, even if this occurred because the evidence or testimony did not exist at the time of trial.’”  State v. Maloney, 2006 WI 15, ¶14 n.4, 288 Wis. 2d 551, 709 N.W.2d 436 (citation omitted).  The only factor under § 752.35 applicable here is whether the real controversy, which is whether Davis’s alleged involvement in the robbery of the drug house and the murder of Matthews, was fully tried. This requires us to determine whether, considering the totality of circumstances, a new trial is required to accomplish the ends of justice.  See State v. Wyss, 124 Wis. 2d 681, 735-36, 370 N.W.2d 745 (1985).

(The opening sentence is an especially nice statement of the standard of review, “We possess a broad power of discretionary reversal pursuant to Wis. Stat. § 752.35, which provides authority to achieve justice in individual cases.”).

As indicated above, the initial decision was withdrawn – this, in response to a State’s motion for reconsideration challenging the court’s authority to grant relief in the interest of justice outside the direct appeal process. The court rejects this idea in the reissued opinion, ¶35 n. 7. Although arguably restrictive language may be found in State v. Allen, 159 Wis. 2d 53, 55, 464 N.W.2d 426 (Ct. App. 1990) (“Our power of discretionary reversal under sec. 752.35, Stats., may be exercised only in direct appeals from judgments or orders.”), the court now places that language in context and gives it a narrow application: “We did not discuss the expansive authority of discretionary reversal explained by the supreme court in Vollmer,” ¶35 n.7. Instead, the court of appeals has a “primary duty of ‘doing justice in an individual case …. ‘Doing justice’ under the authority of Wis. Stat. § 752.35 is what this court attempted to do in this decision.  Our reversal of a trial court order denying a new trial is specifically permitted by § 752.35 …. ” Id. And if any inconsistency may be found between Allen and Vollmer, the latter controls. Id.