On Point

State v. Altonio Laroy Chaney, 2011AP207-CR, District 1, 10/25/11

court of appeals decision (not recommended for publication); for Chaney: Angela Conrad Kachelski; case activity; prior appeal: 2008AP395-CR

Chaney’s argument that an eyewitness had recanted his version of having seen Chaney sexually assault the victim didn’t satisfy the new factor test for sentence modification: the sentencing court didn’t focus on the claim that Chaney, whose guilt was premised on ptac liability, had himself assaulted the victim; relatedly, Chaney can’t show by clear and convincing evidence that the sentencing court relied on the since-recanted version, ¶¶7-8. (“[T]he circuit court based its sentence not on Gurley’s claim that Chaney personally sexually assaulted Regine, but because Chaney ‘had the ability to change the course’ of the multiple sexual assaults by others, and ‘had the ability to stop [the assault by others,] which he didn’t.'”)

Standard of review for new factor claim recited, ¶5, quoting State v. Harbor, 2011 WI 28, ¶¶36–38, 333 Wis. 2d 53, 797 N.W.2d 828.

The court adduces a third reason for rejecting relief: “recantation must be corroborated by other newly discovered evidence,” ¶¶6, 9, quoting State v. McCallum, 208 Wis. 2d 463, 473–474, 561 N.W.2d 707 (1997). McCallum announces a test for plea-withdrawal based on newly discovered evidence in the form of witness-recantation, as the court here is surely aware. Although both claims involve recantation, at the same time the policy goals underlying the distinct forms of relief sought are distinct – it’s certainly arguable that the tests should remain distinct as well. For example, the McCallum recantation test takes into account “the integrity of the initial fact finding process, the finality of judgments, judicial economy, and prejudice to the state caused by delay. Accordingly, exacting standards are applied when a defendant moves for a new trial,” 208 Wis. 2d at 481. A fair argument might be advanced that these considerations don’t apply at all (certainly not to the same extent) in the context of sentence review.

Outagamie County v. Lorna G., 2011AP1662, District 3, 10/25/11

court of appeals decision (1-judge, not for publication); for Lorna G.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Although the trial court’s reference to “potential” for harm was an “imprecise summary” of the §51.20(1)(a)2b test for commitment (“substantial probability of physical harm”), this articulation “was not a deviation from the” correct standard. Moreover, the trial court’s finding that Lorna G. was actually dangerous passes muster, ¶¶8-11. The evidence was sufficient to support this finding, against an argument that Lorna’s behavior didn’t involve “extreme force”:

¶13      We disagree.  Here, Huebner testified Lorna struck a patio window.  She also hit Huebner’s hand and pushed over a chair that would have fallen had a table not been in the way.  Lorna then grabbed Huebner’s hand, squeezed it, and would not let go.  Lorna began stomping through the facility and other residents had to be moved to prevent Lorna from running into them.  Lorna also hit the walls in the facility.  When Pynenberg arrived, Lorna “flung herself on her bed” and started kicking.  She was “throwing herself” around and repeatedly told Pynenberg that she wanted to harm people at the group home.  Although Huebner conceded Lorna’s behavior caused no injuries, the circuit court determined Lorna’s behavior “could be construed [as] she was acting out violently.”  The court then found Lorna was dangerous.  Based on Lorna’s hitting, kicking, hand-squeezing, stomping, body throwing, and threats to harm the other residents, we agree with the court’s determination that Lorna was dangerous.

court of appeals certification; for Bryan Stanley: Kristin M. Kerschensteiner; case activity

Open Records – Sealed Court File – NGI Condition Release Plan 

The appeal raises two significant issues at the intersection of Wisconsin’s Open Records Law and Mental Health Act, one procedural and one substantive. The procedural issue involves the proper mechanism to pursue an open records request for documents that have been placed under seal by the circuit court.  The procedural issue also involves whether an open records requester can recover costs, fees, and damages when it is alleged that a circuit court judge has not timely responded to requests for documents the court has placed under seal.  The substantive issue is whether a conditional release plan for treatment and services under Wis. Stat. § 971.17(4)(e) is a confidential treatment record under Wis. Stat. § 51.30(1)(b) and (4) and thus exempt from disclosure under Wisconsin’s Open Records Law.

…

It appears unclear how an open records requester is to proceed when seeking documents under seal by order of the circuit court.  It is also unclear, under the statutes and current case law, whether the court of appeals has authority to award costs and fees against a circuit court judge for violation of the Open Records Law, either under Wis. Stat. § 19.37(2)(a) or under our supervisory authority over the circuit courts. …  Because the application of the Open Records Law to requests to clerks of court and circuit court judges to release documents under seal will impact clerks, courts, litigants, and the public, we certify this issue to the supreme court.

The next issue we certify is whether a conditional release plan under Wis. Stat. § 971.17(4)(e) is a confidential treatment record under Wis. Stat.§ 51.30(1)(b) and (4).  Under the Mental Health Act, “treatment records” are confidential and privileged to the subject individual.  …

…

It appears unclear whether a conditional release plan under Wis. Stat. ch. 971 is a confidential treatment record under the Mental Health Act.  Moreover, it appears unclear whether, even if the conditional release plan is a confidential treatment record, the conditional release plan is subject to the evidentiary exclusion underWis. Stat. § 905.04 after a court determines that an individual is appropriate for conditional release.  A determination of this issue will have a significant impact on individuals subject to commitment under ch. 971, as well as medical professionals, courts, litigants, and the public.  It is therefore best addressed to the supreme court.

State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11

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

Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.

¶6        Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i).  The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension, namely, the circuit court and the defendant.[3]  Nothing in the new provision places an affirmative duty on the circuit court to request an extension or inform a party of the need for an extension.  Thus, Scherreiks and Deer still control, and the circuit court’s failure to decide the postconviction motion within the period prescribed by statute is not grounds for a remand.  See Scherreiks, 153 Wis. 2d at 516.  Accordingly, we conclude Beck’s due process rights were not violated when the trial court did not request an extension pursuant to § 809.30(2)(i).

Section 809.30(2)(i) says, “Unless an extension is requested by a party or the circuit court and granted by the court of appeals,” the circuit court’s failure to decide the motion within 60 days of filing results in its being “considered to be denied.” According to State v. Scherreiks, 153 Wis. 2d 510, 516, 451 N.W.2d 759 (Ct. App. 1989), when this 60-day limitation period lapses, the circuit court loses competency to rule on the motion. Here, the circuit court invoked this “deemed-denied” principle and refused to rule, because more than 60 days had passed since the motion was filed. Beck then asked the court of appeals to extend the deadline retroactively, but the court refused, “on the basis that he failed to provide an adequate explanation for his failure to request an extension in a timely manner,” ¶4. Lesson? Doesn’t matter that the statute authorizes the circuit court to seek the extension; the burden’s on you to get the extension, which is best sought before its expiration. On the other hand, the court ends up ordering remand anyway, on a Brady claim, so Beck in effect gets the extension anyway.

Trial counsel performed deficiently in failing to move strike 2 different jurors on account of their objective bias. One juror had served in Iraq with the prosecutor, which is alone enough:

¶15      We conclude, based on our reading of Newsome’s voir dire, that counsel performed deficiently by not moving to strike this potential juror for cause.  We note that the circuit court did not address the question of whether Newsome was objectively biased.  Once the court was satisfied with the juror’s assurances that he would be impartial and thereby determined that he was not subjectively biased, it ended the inquiry.  We conclude that the only outcome a reasonable judge could reach is that this prospective juror was objectively biased.  Although we have not found any cases of alleged juror bias where the prosecutor had recently served as the juror’s commanding officer in an armed conflict, we conclude that this relationship is among those that is “so fraught with the possibility of bias that we must find objective bias regardless of the surrounding facts and circumstances and the particular juror’s assurances of impartiality.”  State v. Faucher, 227 Wis. 2d 700, 724, 596 N.W.2d 770 (1999).  The prospective juror may have formed a close bond with the district attorney in Iraq, and the fact that the prosecutor was the prospective juror’s commanding officer raises serious concerns about whether he would be able to independently evaluate the evidence and not be unduly influenced, whether consciously or unconsciously, by his former commanding officer at trial.

The other juror had both an employment and (otherwise undefined) “social” relationship with the prosecution. Employment alone doesn’t establish objective bias, State v. Smith, 2006 WI 74, ¶3, 291 Wis. 2d 569, 716 N.W.2d 482, but counsel failed to delve into the extent of the jurors connections to the district attorney and police, so the court can’t determine on this record whether the juror was objectively biased, ¶17. Still, the court can conclude that counsel’s failure to explore the relationship more fully was a function of deficient performance:

¶18      However, we conclude defense counsel was deficient in not seeking permission from the court to probe more deeply into the relationship between Gross and the prosecutors.  For example, once it was learned that Gross had a social relationship with the assistant district attorney, a reasonable defense attorney would have probed the nature of that relationship to determine whether their relationship was such that it rendered Gross objectively biased.

(Postconviction challenge to a third juror falls short: the juror gave one ambiguous answer as to whether he could be impartial, followed by an explicit assertion that he could, and the trial court’s finding that the juror was not subjectively biased isn’t clearly erroneous, ¶¶19-20.)

Notwithstanding juror bias as discussed above, Beck can’t show prejudice (the second component to an ineffective-assistance claim). For one thing, Beck didn’t exhaust all his peremptories, ¶22, citing State v. Lindell, 2001 WI 108, ¶¶35-38, 245 Wis. 2d 689, 629 N.W.2d 223. For another, none of the ultimately impaneled jurors was biased, ¶¶23-29.

Beck, a prison inmate, was convicted of disorderly conduct for a violent encounter with a guard, who indicated that she had been treated at a hospital for a resultant injury. Because there were very different versions of what had occurred, a security video of the event as it occurred would be material within the meaning of Brady. “Under these circumstances, we conclude that Beck’s allegation that additional video evidence exists is sufficient to warrant a remand for an evidentiary hearing to determine whether such evidence exists and whether it is exculpatory,” ¶38. Similarly, any medical records relating to the alleged injury would be material, and potentially subject to disclosure:

¶41      We conclude, based on Officer Schultz’s statement to the court that she went to the hospital on the night of the incident because of her shoulder problems, that it is highly probable that medical records exist concerning injuries Officer Schultz allegedly sustained during the incident.  If the medical records exist and if the records support Beck’s testimony that he did not throw Officer Schultz against the railing, they would be material, exculpatory, and impeaching.  That is, as with the video evidence, the records would undermine Officer Schultz’s testimony that Beck acted violently, and would negatively affect her credibility as a witness.  In short, assuming the medical records support Beck’s version of what happened during the incident, there is a reasonable probability that the jury would not have concluded that Beck engaged in disorderly conduct.  Thus, Beck’s allegation that medical records exist is sufficient to warrant an evidentiary hearing to determine whether they exist and, if so, whether the records are exculpatory.

State v. Steven C. Cushman, 2011AP957, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); for Cushman: John Smerlinksi; case activity

Probable cause to believe Cushman wasn’t wearing seat belt supported stop of his vehicle.

¶8        Wisconsin Stat. § 347.48 (2m)(gm) mandates seat belt use when operating a motor vehicle equipped with seat belts.[3]  In 2009, this statute was amended to remove language that had previously prohibited a law enforcement officer from stopping a vehicle based solely on the failure to wear a seat belt.  2009 Wis. Act 28, § 2991.  Thus, a violation of the seat belt law is now a primary offense for which a law enforcement officer may initiate a traffic stop.

The trial court’s finding of fact that the officer observed Cushman driving without a seat belt wasn’t clearly erroneous; therefore, the stop was supported by probable cause, ¶¶12-14.

State v. Christopher A. Anderson, 2011AP124-CR, District 2, 10/19/11

court of appeals decision (1-judge, not for publication); for Anderson: Anthony J. Jurek; case activity

¶1        In this case, Christopher A. Anderson was arrested for disorderly conduct while at a hospital.  He contends that because police had no probable cause to take him from his home and bring him to the hospital, his seizure was illegal and, therefore, evidence of his loud, combative and boorish behavior afterward must be suppressed since it was tainted by the illegal seizure.  His argument is plainly contrary to the law in this state, which holds that a combative or loutish response to a seizure, even if the seizure is unlawful, is a separate crime in and of itself.  See State v. Annina, 2006 WI App 202, ¶19, 296 Wis. 2d 599, 723 N.W.2d 708.  We affirm.

…

¶5        Anderson spends much time telling us what Annina stands for. We know what the case stands for.  We wrote it.  In that case, we clearly and plainly (or at least we thought it was clear and plain until this appeal) explained that even if the police had no lawful authority to confront the defendant, the defendant’s reflexive conduct in response, if it violates the law, is grounds for arrest.  See Annina, 296 Wis. 2d 599, ¶19. …

Yikes. The court goes on to discuss Annina and like authority at some length, and with unconcealed exasperation. Keep in mind, though, that Annina itself distinguishes disorderly conduct from obstructing/resisting (which requires police exercise of “lawful authority”), and leaves for another day whether a citizen can be guilty of resisting an arrest unsupported by probable cause. 2006 WI App 202 ¶18. To be sure, that problem is presented here neither on the law (disorderly conduct contains no element equivalent to “lawful authority”) nor the facts (the crime occurred at quite some remove in time and place from the alleged unlawful entry and arrest).

court of appeals publication orders, 10/19/11

On Point posts from this list:

2011 WI App 142 State v. James T. Kettner