On Point

State v. Guadalupe Jose Rivas, 2010AP2777-CR, District 1, 9/13/11

court of appeals decision (not recommended for publication); for Rivas: George Tauscheck; case activity

¶5        Rivas argues that four instances of inaccurate information mentioned by the trial court at his sentencing require resentencing:  (1) the trial court believed that Rivas had five prior felonies when he had only four; (2) the trial court mischaracterized Rivas as a drug dealer; (3) the trial court erroneously believed Rivas was addicted to cocaine and marijuana; and (4) the trial court erroneously described the victim as a “defenseless” drug addict in need of protection.  Although we acknowledge the inaccuracies, we disagree that they impacted the trial court’s sentencing decision.

Test for sentence-review based on inaccurate information recited, ¶7 (“A defendant claiming a trial court relied on inaccurate information must show not only that the information was inaccurate, but also that the trial court actually relied on the inaccurate information,” citing State v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1.) Critically: the first two inaccuracies were corrected before the trial court pronounced sentence, ¶9, therefore couldn’t have been “actually relied on” – though the court of appeals’ analysis, it must be said, is less than explicit on this point. Contrast, United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir.1984) (resentencing where judge misconstrued prior conviction for simple robbery as armed robbery), cited with approval by Tiepelman. As for the latter two inaccuracies: the trial court’s disavowal on postconviction motion that correcting them would have changed the result is enough to save the sentence, ¶12, citing State v. Lechner, 217 Wis. 2d 392, 422, 576 N.W.2d 912 (1998). The idea is, “A trial court’s comments at the postconviction hearing may establish that the trial court was aware of, and did not consider, the improper factors,” ¶7. This might seem an invitation to cynicism – “Thanks for showing an inaccuracy that I actually relied on and allowing me to clarify that I didn’t actually rely on it.” But consider that Tiepelman offers an escape hatch so that even if the defendant shows reliance on an inaccurate fact, the sentence nonetheless may be sustained on the basis of harmless error, 2006 WI 66, ¶26. In other words, the result here might be seen as defensible a matter of harmless error rather than non-reliance.

Two other points worth noting. The court stresses, “reliance on erroneous information may be waived when it is not timely brought to the trial court’s attention at sentencing,” ¶12. The court doesn’t impose a waiver bar here, but that doesn’t mean it won’t in the future. Second, the court cautions trial judges to make sure they have “accurately read and understood the sentencing information …. Otherwise the defendant may, understandably, believe that the sentence was based on inaccurate information, causing unnecessary postconviction motions and appeals,” ¶9 n. 2.

Sentence of 4 years (2 confinement, 2 supervision) for theft from person wasn’t unduly harsh, in light of Rivas’s extensive criminal history and trial court’s appropriate consideration of permissible factors, ¶¶14-19. (Test recited, ¶15.)

Sentencing court’s reliance on idea of “progressive discipline” – leading to 2 years’ confinement where prior confinement sentence was 1.5 years – didn’t amount to a preconceived, non-individualized sentence based on a mechanistic approach.

¶22      As we have explained above, the transcripts do not demonstrate a formulaic rigidity in the trial court’s sentencing decision.  First, we do not understand a statement of general belief in progressive discipline to be the equivalent of imposing a formula.  Second, the trial court’s statement was made in the context of its observation that it might be foolish to repeat what has not worked before―specifically, probation or a short period of incarceration when the defendant has not succeeded on such sentences previously.

Managed Health Services Insurance Corp. v. Wisconsin DHS, 2010AP2551, District 1, 9/7/11

court of appeals decision (recommended for publication ); case activity

Managed Health’s appeal related to contract procurement is dismissed as moot; because of failure to seek a stay of the trial court’s order allowing the process to continue, the contracts have already been let, and therefore even if Managed Health were to prevail, no remedy could be awarded.

¶19      In response, DHS contends that Managed Health’s claims are moot because DHS signed contracts with the winning proposers after Managed Health failed to obtain an injunction.  Because the contracts have been signed, DHS submits that Managed Health cannot obtain the remedies it seeks, and therefore its claims are moot pursuant to PRN Associates LLC v. State of Wisconsin Department of Administration, 2009 WI 53, 317 Wis. 2d 656, 766 N.W.2d 559.  We agree with DHS.

¶20      “An issue is moot when its resolution will have no practical effect on the underlying controversy.”  Id., ¶25.  We “generally decline to reach the merits of an issue that has become moot,” id., ¶29, because as a general rule, we do not determine abstract principles of law, id., ¶28. Whether an issue is moot is a question of law we review de novo.  State ex rel. Milwaukee Cnty. Pers. Review Bd. v. Clarke, 2006 WI App 186, ¶28, 296 Wis. 2d 210, 723 N.W.2d 141.

¶21      To determine whether the resolution Managed Health seeks can have any practical effect on the existing controversy, we need not address the legal issues Managed Health raises on appeal.  See PRN, 317 Wis. 2d 656, ¶31.  Instead, we examine Managed Health’s requested relief.  See id.  In its amended petition for judicial review, Managed Health requested that the circuit court:  (1) set aside DHS’s April 2010 Notice of Intent to Contract; or (2) in the alternative, issue an order directing DHS to award a contract to Managed Health.  We conclude that PRN precludes Managed Health from recovering either remedy.

…

¶24      Here, after the circuit court’s adverse decision on its motion for an injunction, Managed Health could have, and should have, asked the circuit court to stay proceedings and sought relief from a non-final order with this court. …  Because it did not, DHS signed contracts with the four winning proposers, and now Managed Health’s claims are moot.

Not relevant to SPD practice on the facts, of course, but the broader principle is worth keeping in mind even if it doesn’t come up that often:  “An issue is moot when its resolution will have no practical effect on the underlying controversy.”

Rock County HSD v. Jennifer B., 2011AP1524, District 4, 9/8/11

court of appeals decision (1-judge, not for publication); for Jennifer B.: Gina Frances Bosben; case activity

Evidence of the child’s diagnoses (ADHD; PTSD) was relevant to the main issue in contention, and was not unduly prejudicial, hence was admissible in the grounds phase of the TPR trial.

¶15      The question for the jury was whether there was a substantial likelihood that Jennifer would not “meet the child’s physical, educational, medical, and emotional needs on a daily basis” within the next nine months.  To answer this question, the jury needed to know what Mercedes’ needs were, including her mental health needs.  Further, the therapist’s testimony revealed that some of the likely causes of Mercedes’ problems related to Jennifer.  That information was plainly relevant to whether Jennifer could meet Mercedes’ needs in the future.  Similarly, Mercedes’ treatments were relevant because it was established that Mercedes needed a stable environment and regular medication for her treatment to be effective, and it was in dispute whether Jennifer could provide the needed level of stability and attention necessary to regularly medicate Mercedes.

La Crosse Cnty. Dep’t of Human Servs. v. Tara P., 2002 WI App 84, ¶¶10-12, 252 Wis. 2d 179, 643 N.W.2d 194 (“facts occurring prior to a CHIPS dispositional order are frequently relevant to the issues at a termination proceeding”) also relied on: “The present case provides an example of just such a situation, where a prediction of Jennifer’s future ability to meet Mercedes’ needs is the focus of the proceeding and there is reason to believe that past events, when Mercedes was in Jennifer’s care, have contributed to Mercedes’ problems.”

Brief mention by a therapist that the parent had voluntarily terminated her rights to another child was, if error, harmless, ¶¶21-32.

Highly fact-specific result. General principles include recitation of test for harmless error, ¶22, citing Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698: “Error is harmless when there is no ‘reasonable possibility that the error contributed to the outcome of the action or proceeding at issue.’ … ‘A reasonable possibility of a different outcome is a possibility sufficient to ‘undermine confidence in the outcome.’” Court also stresses that parent was offered, but rejected, curative instruction, ¶23, citing State v. Collier, 220 Wis. 2d 825, 837, 584 N.W.2d 689 (Ct. App. 1998) for idea that “Potential prejudice is presumptively erased when admonitory instructions are properly given by a trial court.”

State v. Carl Mills, 2010AP1746-CR, District 1, 9/7/11

court of appeals decision (not recommended for publication); for Mills: Randall E. Paulson, SPD, Milwaukee Appellate; case activity

Trail counsel was not ineffective for failing to object to jury instructions and verdict forms with respect to unanimity on multiple counts of sexual assault of a single victim, even though the verdict forms did not specify the types of sexual intercourse involved; State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished.

¶19      In contrast to the situation in Marcum, Mills fails to show that he was prejudiced by his trial counsel’s failure to object to the lack of verdict specificity.  First, the jury did not lack the ability to match each alleged act to each sexual assault charge.  Both Alana M.’s testimony and the State’s closing arguments were clear as to the order and circumstances surrounding the four distinct sexual assaults.  …  Unlike Marcum, the record in this case shows there was always a clear distinction between the acts underlying each count.

¶20      Second, the trial court also specified which act correlated with which count when it instructed the jury on the charges before closing arguments. …

¶21      In Marcum, we acknowledged “that any unanimity problem could [be] avoided by an instruction telling the jurors that they must be unanimous about the specific act that formed the basis for each count.”  Id. at 918.  “And, if the conduct involves separate transactions and separate crimes, the court must then instruct the jury that unanimity is required as to each.”  Id.  The trial court took the proper steps to avoid a unanimity problem.  The instructions are clear that the jury was to consider each count separately and was to reach a unanimous verdict as to each count.  We presume that the jury followed these instructions.  See State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989) (jury is presumed to follow instructions).  Even if Mills’s trial counsel should have objected to the wording in the Information, instructions and verdict forms, Mills was not prejudiced by this failure.

The State’s closing argument summarized the four assaults in the order, and under the circumstances, described by the victim, ¶9. The jury acquitted on two of the four counts – “the two counts in which the jury was presented with physical evidence,” ¶19.

court of appeals decision (not recommended for publication); for Linssen: Thomas C. Simon; case activity

Sentence Review – Harsh & Excessive 

Sentence to maximum term of confinement for felony theft and forgery wasn’t harsh and excessive, notwithstanding lack of prior criminal record.

¶23      Linssen has failed to provide clear and convincing evidence that the sentencing court relied on improper factors, see Harris, 326 Wis. 2d 685, ¶¶34-35, 60, or that her sentence was unduly harsh and excessive, see Ocanas, 70 Wis. 2d at 185.

¶24      First, the record demonstrates that the court properly exercised sentencing discretion by relying on a number of relevant and appropriate sentencing factors before imposing a sentence within the statutory range for Linssen’s aggravated property felonies.  The court emphasized what it considered to be the gravity of the offense, the need to punish Linssen, and the societal interest in deterring others.  In considering Linssen’s character and rehabilitative prospects, the court observed that the length of time Linssen engaged in the crimes likely made thievery and forgery a habitual, ingrained part of who she is.  It also found troublesome Linssen’s ability to perpetrate this crime upon two of her closest friends.

¶25      Second, Linssen’s sentence—one within the statutory maximum—was not unduly harsh and excessive.  See Hanson, 48 Wis. 2d at 207.  We understand that Linssen was not sentenced according to the plea agreement, but the sentencing court is under no obligation to do so.  See State v. Williams, 2000 WI 78, ¶2, 236 Wis. 2d 293, 613 N.W.2d 132 (“In Wisconsin, a trial court is not bound by the [S]tate’s sentence recommendation under a plea agreement.”).  As noted, the court considered Linssen’s character and mitigating factors and concluded that the aggravated nature of Linssen’s criminal conduct over five years outweighed whatever mitigating factors there were.  The court explained that, despite Linssen’s lack of criminal record, her actions showed such an immoral character that there is no reason not to believe she would do it again if given the chance.  The court did what it was obligated to do. It considered the crime itself, the community and the criminal.  See Daniels, 117 Wis. 2d at 21.  In so doing, the court exercised exemplary discretion on the record in sentencing Linssen.

Standard of review discussed at some length, court stressing “strong presumption” of reasonableness of sentence, and “wide discretion” invested in sentencing court.

State v. Andrew W. Rosenthal, 2011AP828-CR, District 3, 9/7/11

court of appeals decision (1-judge, not for publication); for Rosenthal: Erica L. Bauer; case activity

Reasonable suspicion supported stop of car, at 2:30 a.m., in isolated area which was site of frequent break-ins; State v. Young, 212 Wis. 2d 47, 569 N.W.2d 84 (Ct. App. 1997), distinguished:

¶14      Here, conversely, we conclude that Rosenthal’s conduct does not describe the conduct of a large number of innocent persons.  See id. at 433. Oberg observed Rosenthal travel to a storage facility under the cover of night, enter the complex, encircle one of the set-back buildings, and then attempt to leave without stopping at a specific unit.  Although it is not unlawful to travel to a twenty-four hour storage complex at 2:30 a.m., Oberg testified the activity was peculiar and explained he became very suspicious when the vehicle, after driving around one of the buildings, failed to stop at a unit, and attempted to leave.  Oberg also considered this activity in light of his knowledge that the storage complex suffered the most break-ins of any storage facility and had been designated a high-priority patrol area.  Considering the totality of the circumstances, we conclude Rosenthal’s conduct could give rise to a reasonable inference that Rosenthal was “casing” the premises[2] and, thus, Oberg had reasonable suspicion to conduct a Terry investigation.  See Anderson, 155 Wis. 2d at 84.

Kenosha County DHS v. Amber D., 2011AP667, District 2, 9/7/11

court of appeals decision (1-judge, not for publication); for Amber D.: Philip J, Brehm; case activity

Mother’s termination appeal, explicitly linking itself to outcome of father’s then-pending appeal, rendered moot by latter’s unsuccessful outcome:

¶1        Amber D. appeals from an order terminating her parental rights.  At the time that she wrote her brief, the father’s appeal was pending. Amber claimed that if the father’s appeal is successful and his case is remanded for further proceedings, her appeal should be likewise successful because her issue mirror’s the father’s argument.  But the father’s appeal was ultimately unsuccessful.  So, there is no justiciable issue for this court to decide. Her appeal is moot.

…

¶4        Based on the decision from the father’s case, the County argues that Amber’s only claim—that she should be afforded the same relief that the father would obtain—is moot.  See Appel v. Halverson, 50 Wis. 2d 230, 233, 184 N.W.2d 99 (1971) (An appeal is moot when a decision “is no longer needed or makes no difference as to the resolution of the controversy.”)  We agree. We also note that Amber chose not to file a reply brief, thereby tacitly conceding the County’s argument.  See Mervosh v. LIRC, 2010 WI App 36, ¶10, 324 Wis. 2d 134, 781 N.W.2d 236 (arguments not refuted are deemed admitted).