On Point

Margaret Colgate Love, “Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in Plea Negotiations” (“Padilla v. Kentucky underscores the defense bar’s stake in participating in the ABA standard-setting process to guide the development of their obligations in plea negotiations.”).

“Will Robots Steal Your Job? Software could kill lawyers. Why that’s good for everyone else.” (“The trouble is that the path from here to there will be rocky—many firms will be shuttered, an ever-larger number of newly minted young attorneys will fail to find work, and a huge industry’s economic prospects will fade.”) As the post title suggests, other industries may benefit.

Law schools behaving badly.

ABA, “Advising Clients Regarding Direct Contacts with Represented Persons.”

Richard Friedman: Illinois v. Williams. (Issue: “Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.”)

Perry v. New Hampshire (“whether due process prohibits the admission of all eyewitness identification testimony made under suggestive conditions, or whether it bars only eyewitness testimony in which the police were responsible for those conditions”).

Preview, Howes v. Fields (“Is a prisoner always “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), when the prisoner is isolated from the general prison population for questioning about conduct that occurred outside the prison?”)

Mike Sacks, “Justice John Paul Stevens Talks Death Penalty, Citizens United, New Memoir.”

Michael O’Hear, “What Must a Defendant Do in Order to Go It Alone?”

“Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.” (“The Supreme Court rarely strikes down government enactments or overturns its own precedents—and this is consistently true over the past 50-plus years.”)

“ABA Provides Guidance for Ethical and Legal Duties When Employer’s Lawyer Obtains Employee’s E-mails With the Employee’s Lawyer.”

“I’m Under Arrest for What? Fifty Bizarre U.S. Laws.” (Wisconsin’s entrant? “Unless a customer specifically requests it, margarine may not be substituted for butter in a restaurant.” The reference must be to sec. 97.18(4). Keep your chin up, Bucky: 2011 SB 183 would repeal Wisconsin’s status as a national laughing stock … unless the Brewers lose to the Diamondbacks and Bucky to the Cornhuskers.

J. K. v. Mark Peters, 2011 WI App 149 (recommended for publication); case activity

Appellate Procedure – “Waiver,” Distinguished from “Forfeiture” 

¶1 n. 1:

In using the term “waiver,” we are aware of the recently decided case of State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, where our supreme court clarified the distinction between the terms “forfeiture” and “waiver.”  See id., ¶29 (“Although cases sometimes use the words ‘forfeiture’ and ‘waiver’ interchangeably, the two words embody very different legal concepts.  ‘Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.’”) (citation omitted).  Although forfeiture may be applicable in this context, we use waiver to be consistent with the cases cited.

Appellate Procedure – Civil Cases – Necessity of Post-Trial Motion 

In civil cases, the rule that a post-trial motion is necessary to preserve for appellate review all issues other than sufficiency of the evidence applies to bench as well as jury trials :

¶25      We held in Ford Motor Company v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987), that “failure to include alleged errors in the motions after verdict constitutes a waiver of the errors.”  Id. at 417.  As such, we noted that “‘[m]otions after verdict must state with particularity the alleged error so as to apprise the trial court of the alleged error and give it an opportunity to correct it, thereby avoiding a costly and time consuming appeal.’”  Id. (citation omitted).  The rule applies even “where a proper objection is made during the course of trial.”  Id.  We recently reiterated that holding in Suchomel v. University of Wisconsin Hospital & Clinics, 2005 WI App 234, ¶10, 288 Wis. 2d 188, 708 N.W.2d 13.

¶26      Peters admits that he failed to raise his evidentiary claims in a post-trial motion, but argues that Ford Motor and Suchomel are inapplicable because both Ford Motor and Suchomel involved trials to a jury, and, here, the trial was before the court.  See Ford Motor, 137 Wis. 2d at 415 (referencing the jury’s verdict); Suchomel, 288 Wis. 2d 188, ¶1 (same).  Peters goes on to cite Wis. Stat. § 805.17(4) (2009-10)^[3] in support of his assertion that the rules applying to jury trials and court trials are fundamentally different, thereby exempting him from the explicit requirements of Ford Motor.  We do not find Peters’ arguments to be persuasive.

Now that ch. 980 cases have been placed within Rule 809.30, it’s hard to imagine this problem arising in the SPD context. But the holding has obvious (and recurrent) importance, so the civil practitioner will want to keep it in mind. Just to round off the distinction, the parallel rule in SPD cases is found in § 809.30(2)(h): “The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.” Emphasis supplied. By contrast, the plain text of § 805.17(4) allows post-trial motions in civil bench trials to be pretermitted only where sufficiency of the evidence is raised on appeal.

Florence County Dept. of Human Services v. Jennifer B., 2011AP384, District 3/1, 9/29/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Martha K. Askins, SPD, Madison Appellate; case activity

Because the record doesn’t clearly establish whether Jennifer B. voluntarily terminated her rights, entered a no-contest plea, or made an admission to the allegations in the petition, a new TPR hearing is required. The trial court didn’t sufficiently inquire into matters required of a voluntary consent to terminate, ¶¶11-14.  Nor does the record establish the requisites for a no-contest plea or admission, such as a factual basis, understanding of rights waived or consequence of the plea or admission, ¶¶15-17.

¶18      If Jennifer B. meant to consent to termination, the elements required by Wis. Stat. § 48.41 have not been established.  If Jennifer B. meant to plead no contest or admit to the allegations in the petition, the elements required by Wis. Stat. §48.422(3) & (7) have also not been met.  Therefore, we must reverse and remand for a new hearing.

State v. Carlos G. Comas, 2010AP2687-CR, District 4, 9/29/11

court of appeals decision (not recommended for publication); for Comas: Steven D. Grunder, SPD, Madison Appellate; case activity

Although Comas was charged with § 948.025(1)(a), repeated sexual assault of the same child by acts of sexual intercourse, the case was in effect tried under § 948.025(1)(ar) ,which requires acts of sexual intercourse or contact. Comas received a confinement term of 25 years, conforming to the sentencing judge’s understanding that subs. (1)(a) carries a mandatory minimum confinement of 25 years. The court now holds that, because the guilty verdict was premised on a theory of guilt under subs. (1)(ar), the sentence to a mandatory minimum under subs. (1)(a) can’t be sustained. Comas is entitled to be resentenced under (1)(ar) without regard to a mandatory minimum.

¶7        …  The gist of Comas’s argument is that, although he was charged under § 948.025(1)(a), a crime requiring proof of multiple acts of sexual intercourse, Comas’s jury was instructed, and he was actually convicted, in accordance with a different subsection, § 948.025(1)(ar), a crime that requires proof of multiple acts of sexual intercourse or sexual contact.  It is undisputed by the parties here that the latter crime does not carry with it a mandatory minimum. According to Comas, it follows that the jury’s verdict does not support application of the mandatory minimum sentence.  We agree, and now explain in greater detail.

…

¶9        At trial, although the jury was told that Comas was charged under Wis. Stat. § 948.025(1)(a), the jury was instructed in accordance with § 948.025(1)(ar). …

¶10      Consistent with this instruction, the testimony and argument at trial focused on “sexual contact.”  Significant portions of the victim’s testimony at trial concerned Comas “rubbing” the child’s vagina with his fingers and with his penis, acts clearly constituting sexual contact, but not clearly constituting sexual intercourse.  Although there was a videotaped interview played at trial in which the child indicated that there had been penetration, and the prosecutor briefly argued in his closing arguments that there was some evidence of penetration, the majority of the prosecutor’s argument was focused on the “sexual contact” testimony about Comas’s “rubbing” of the child’s vagina.

…

¶12      It is readily apparent that, even granting the State the assumptions discussed above, before the 25-year mandatory minimum confinement provision could apply to Comas, his jury would have needed to find that Comas committed three or more acts of sexual intercoursewith the child, as required by Wis. Stat. § 948.025(1)(a).  It is equally clear that the instructions underlying the jury’s verdict did not require that the jury find that Comas engaged in one act of sexual intercourse, much less three or more acts of sexual intercourse.  Thus, the jury’s verdict did not support a violation of § 948.025(1)(a) as amended by Act 430 and, consequently, did not support imposing on Comas the 25-year mandatory minimum.[8]

Entitlement to that relief is certainly self-evident, but the precise rationale may not be. Comas argued that he was entitled to resentencing as a matter accurate information and due process. (Br.-in-Ch., p. 17: “Comas was sentenced on the basis of inaccurate information, because the parties and the court believed that he was subject to a 25-year mandatory minimum.”) That’s as good a candidate as any, even if the court didn’t explicitly adopt it as such. Note that an Apprendi argument can’t be applied without qualification, in light of Harris v. U.S., 536 U.S. 545, 557 (2002) (Apprendi doesn’t apply to “a fact increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding”). The argument would have to be that Harris doesn’t apply because the jury verdict did not authorize the mandatory minimum. But then we would be in danger of arguing in circles, illustrating the virtue of Comas’ approach to relief: elegant in its simplicity.

Now for the really fun part, the issue the court did not reach, though it’s been kicking around awhile. Does § 948.025(1)(a) actually have a mandatory minimum? There are good reasons to think not, in view of the legislature’s near-simultaneous enactment of inconsistent provisions, one with a mandatory minimum (2005 Wis Act 430) and one without (2005 Wis Act 437). The court summarizes the argument, ¶6 (terming it “complex”), but declines to “weigh in on this topic,” in view of the grant of requested relief on the ground noted above. The details won’t be canvassed here, but if you have a client coming within § 948.025(1)(a) then you’d be well-advised to familiarize yourself with that argument, which you’ll find in Comas’ briefs at the “case activity” link above. One final aside: the court refers to its recent decision in State v. Thompson, No. 2009AP1505-CR, unpublished slip op. (WI App Nov. 24, 2010), ¶5 n. 2, in which the parties agreed, and the court of appeals did not dispute, that the mandatory minimum does apply. It is mentioned here only to note that the case is currently pending in the supreme court. It is possible, though far from certain, that the supreme court will precedentially resolve this issue, so you’ll want to keep an eye on that case if you’re tracking the issue.

court of appeals publication orders, 9/28/11

On Point posts from this list:

2011 WI App 123 DOC v. Warren Lilly, Jr.

2011 WI App 124 State v. Steven A. Avery

2011 WI App 125 State v. Paschall Lee Sanders

2011 WI App 127 State v. James G. Brereton

2011 WI App 129 State v. Devon L. Bean

2011 WI App 130 State v. Orbin B. Harris

2011 WI App 131 State v. Courtney C. Beamon

on review of summary order (District 1); for Sutton: Colleen Ball, SPD, Milwaukee Appellate;  case activity

No-Merit Appeal Procedure – Remand for Evidentiary Hearing

Issues: 

1. (Composed by On Point:) Whether § 809.32(1)(g) requires the court of appeals to remand a case to the circuit court for an evidentiary hearing where, during the course of a no-merit proceeding, an arguably meritorious claim for ineffective assistance of postconviction counsel becomes apparent?

2. (Added by Court:) Whether a defendant can raise a claim of ineffective assistance of postconviction counsel or appellate counsel when the defendant finished his or her sentence before the conviction became final with the conclusion or expiration of direct appeal and, if so, the proper procedural mechanism for raising such a claim?

Postconviction counsel identified a potentially meritorious issue and filed a Rule 809.30 motion for new trial, which the trial denied solely because of a pleading defect in the motion papers. (Counsel argued that Sutton, who was convicted after bench trial, didn’t validly waive his right to jury trial. The motion was a nonstarter, however, because it inadvertently neglected to assert that Sutton was unaware of the right to unanimous verdict, State v. Grant, 230 Wis. 2d 90, 102, 601 N.W.2d 8 (Ct. App. 1999) (Grant “has failed to allege that he was unaware of the jury unanimity requirement. That omission is fatal to his postconviction claim.”). This pleading omission was mere oversight on counsel’s part, which she sought to rectify by moving the court of appeals to extend the now-lapsed 809.30 motion deadline so she could correct the defect with a renewed motion. The court refused the request, leaving counsel in a quandary: she was sitting on a potentially meritorious issue but the record as constituted did not support a merits appeal. Counsel sought to resolve the problem by filing a Rule 809.32 no-merit appeal, and arguing in her report that the defect in the postconviction motion was due to her own lack of familiarity with the pleading requirement (hence, a function of ineffective assistance of counsel rather than strategy), and curable with a remand. Sutton, availing himself of the opportunity afforded by no-merit procedure to respond to counsel’s report, asserted that he was unaware of the unanimity requirement. At that point, then, the court of appeals had before it an arguably meritorious issue in the posture of a no-merit appeal. The court nonetheless summarily affirmed, ruling simply that the trial court “properly denied the postconviction motion that was before it.”

That’s the background. The larger question, beyond the specific factual context, relates to when the court of appeals on a no-merit appeal may or should utilize the remand procedure in Rule 809.32(1)(g) to remand for fact-finding on an issue that could support a merits appeal. This problem was touched on, but no more than that, in State v. Allen, 2010 WI 89, ¶88, n. 9:

… However, the broad scope of review mandated by Anders suggests that the court of appeals in a no-merit appeal should identify issues of arguable merit even if those issues were not preserved in the circuit court, especially where the ineffective assistance of postconviction counsel was the reason those issues were not preserved for appeal.[9]

---

[9] Although not in effect at the time of Allen’s no-merit appeal, Wis. Stat. § 809.32(1)(g) (2007-08) now permits the court of appeals to remand for an evidentiary hearing if the defendant and attorney allege disputed facts not in the record and that the defendant’s alleged facts, if true, would make disposition under § 809.32(3) inappropriate.

The State resists the idea that subs. (1)(g) is the proper vehicle for resolving a claim of ineffective assistance of postconviction / appellate counsel, arguing that this subsection may be used to determine ineffective of trial, but not appellate, counsel. Not clear why the one but not the other, and anyway isn’t this view overly concrete? After all, the whole point of the procedure is that “the appellate court not only examines the no merit report but also conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit,” State v. Tillman, 2005 WI App 71, ¶17, 281 Wis. 2d 157, 696 N.W.2d 574. When counsel’s own report – not to say the entire record, which includes prior exchanges between counsel and the court – asserts the existence of an arguably meritorious motion, doesn’t it violate the spirit of Anders, if not the precise letter of Rule 809.32, to find no arguably meritorious issues?

Why couldn’t Sutton just raise the issue under §  974.06? He’s out of custody, therefore ineligible for relief under that provision,  State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976) (court “without jurisdiction” to entertain 974.06 motion brought by someone no longer in custody). But the State’s response to Sutton’s petition for review argues that as an equitable matter he should be allowed to bring a habeas challenge to the conviction, notwithstanding absence of custody. Hence Issue No. 2, added by the court.

Docket

Decision below: Wood v. Milyard, 10th Cir, 11/26/10

Questions Presented (by the Court):

1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense?

2) Does the State’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the State may have had?

Cert. Petition

SCOTUSblog page (not yet posted)

The limitations defense was raised sua sponte by the lower court. Not clear whether that would fly in the 7th, Grigsby v. Cotton, 456 F.3d 727, 732 (7th Cir.2006) (“We will not enforce the alleged untimeliness of Grigsby’s petition. The state’s argument on appeal chastises Grigsby for not arguing — presumably in his opening brief — that we should look past the alleged untimeliness of his petition and his procedural default. But it was the state’s duty to raise those defenses in the district court, and it has provided us no reason to excuse its failure to do so.”). But see, Bates v. Carter, N.D. Ind., 3/22/11 (“Grigsby stands not for the proposition that a district court may not sua sponte raise the statute of limitations, but rather for the proposition that the State may not raise the statute of limitations for the first time on appeal.”) In any event, we will see soon enough whether lower courts may sua sponte bounce a petition on procedural grounds, or must instead wait to bounce it on the merits.