On Point

State v. Darrell K., 2010AP1910, District 1, 10/19/10

court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee

Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.

¶10      The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.  The court held “[t]he legislative goal of securing a fair procedure is not served unless a parent is given the opportunity to be heard in a meaningful time and in a meaningful manner.”  Id., ¶49.  The trial court here, in noting that Attorney Lang was in an “impossible situation,” granted his motion to withdraw and Attorney Lang left the courtroom. Darrell was found in default and the trial court proceeded to hear only the State’s unchallenged evidence before finding Darrell unfit.  In Shirley E., the court held that this procedure violated a parent’s statutory right to representation by stating that “[a] [trial] court [has] no power to bar the parent or parent’s counsel from participation at the fact-finding stage.”  See id., ¶41.

Counsel’s motion to withdraw was based on lack of contact with, and cooperation from, Darrell but this wasn’t enough to establish waiver, given lack of evidence “that Darrell ever knowingly or voluntarily waived his right to counsel,” ¶12. Nor did representation by counsel at subsequent dispositional hearing cure the error: “Darrell’s right to counsel at the grounds phase was mandatory, unless knowingly and voluntarily waived,” ¶13.

¶14      We cannot agree that Darrell’s representation at the dispositional phase cured the error that occurred at the grounds phase.  To accept the State’s argument would essentially render Darrell’s lack of counsel at the grounds phase a harmless error because counsel was later supplied.  Our supreme court rejected that alternative in Shirley E. when it held that the “denial of the statutory right to counsel … constitutes structural error.”  Id., ¶63 (emphasis added).  This error, the court continued, is a “prejudicial error per se” and undermines the “fairness and integrity of the judicial proceeding that the legislature has established for termination proceedings.”  Id., ¶¶63, 64.  Therefore, a harmless error analysis is inappropriate for evaluating whether a parent’s right to counsel was violated by a lack of representation at one of the two critical stages in the termination proceedings.

Nor, finally, does a “best-interests” analysis support affirmance:

¶17      The entire Children’s Code is intended to promote the best interest of a child.  See WIS. STAT. § 48.01(1).  One of those interests is the presumed interest of the child to remain with his or her parents.  See § 48.01(1)(a).  Hence, the statutory grounds which permit the parental bond to be legally destroyed require proof of what many would consider appalling parental misconduct.  See WIS. STAT.§ 48.415.  Unless the parent(s) are afforded a fair and meaningful opportunity to fully participate in the proceedings, with counsel, during the State’s attempt to establish that misconduct, and to meaningfully challenge the State’s assertions with the assistance of counsel, a child’s best interests in the broadest sense have not been truly protected.  The existence of a two-step process in which the first step focuses on both the parent’s conduct and the parent’s interest in preserving parental bonds, while the second step focuses on the best interest of the child as to physical placement, reflects the legislative determination that both steps are separately necessary to promote the best interest of the child.  Given the significant familial interests at stake, the best interest of the child and a parent’s right to counsel go hand-in-hand.

¶18      We are cognizant that the placement planning for Marquise has been delayed by this appeal and may be further delayed by the remand and necessary hearing.  However, we note that Attorney Mountin filed two motions to vacate the default judgment.  Had either of those motions been granted, much of the delay which has occurred might well have been avoided.

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir. 2003) — “default was not based on an adequate state ground because of various inconsistencies in Wisconsin’s appellate procedure” — and in the process rejects Wisconsin’s request to reconsider Page.

Page premised its conclusion on two distinct principles. First, the state must not apply a waiver bar in an unexpected or freakish way, else the bar isn’t enforceable on federal habeas review. Wisconsin procedure requires that a challenge to trial counsel’s representation be brought in the circuit court in the first instance. Thus, it would be anomalous to impose a waiver bar for failing to assert in the court of appeals, in response to a no-merit, a ground (IAC) that that court simply wouldn’t entertain anyway (given, at least, procedure extant during litigation of Page).  “The practical effect of the Court of Appeals of Wisconsin’s conclusion —that the failure to identify ineffective assistance of trial counsel as an issue in response to an Anders no-merit brief constitutes a waiver—is to require Mr. Page to have asserted a claim before the court of appeals that, under established Wisconsin case law, he could not bring initially in that forum because it had not been brought to the attention of the trial court. Federal habeas review cannot be precluded on such a ground because the basis relied upon by the Wisconsin court does not apply Wisconsin procedure in a ‘consistent and principled way.'” 343 F.3d at 909.

The second premise for rejecting waiver is “even more fundamental.” A defendant has the right to assistance of counsel as part of the direct appeal process. Thus: “It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.” Id.

There may be reason to doubt the continuing vitality of the first asserted reason, given that now, the Wisconsin court of appeals does have authority to process an IAC response. See §§ 809.32(1)(e)-(g), amended to such effect subsequent to state-court litigation of both Page and Johnson. The second reason, though, would seem to exist independent of any mechanism for reviewing an IAC claim during pendency of the no-merit appeal. As Johnson puts it (footnote 1): “There is clear tension between the requirement that a waiver of counsel be clear and intentional and the notion that a petitioner can waive that right simply by failing to respond to a no-merit report.” That tension seemingly remains.

Take note, as well, of State v. Aaron A. Allen, 2010 WI 89: “The fact that the defendant is not required to file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new § 974.06 claims,” ¶4. The court then imposed a waiver bar: “Allen’s § 974.06 motion is based entirely on issues that he could have raised in a response to his appellate counsel’s no-merit report,” ¶5. The court glancingly referred to Page, and suggested that the court of appeals’ authority to remand for an evidentiary hearing on an IAC claim provided support for rejecting that court’s conclusion, ¶88 and id. n. 9. But even if that is so, it is something that doesn’t quite get at the waiver problem. The Johnson court alludes to Allen, and reserves for a later day whether “the inconsistencies bound up in Wisconsin’s appellate procedures” have now been resolved.

Ineffective Assistance

Various claims of ineffective assistance, rejected:

• Counsel disclosed, prior to trial, his mental health problems to Johnson, therefore did not violate a duty of candor to client; nor does Johnson point to specific deficient acts caused by these problems.
• Failure to move to strike testimony of an uncharged crime (in violation of a pretrial order) “was likely a sound  tactical decision, designed to not draw attention to the very issue Johnson’s counsel rightfully wished to bury.”
• Failure to move to suppress certain evidence wasn’t prejudicial, because the motion wouldn’t have succeeded (the record shows valid consent to search a shared residence).
• Appellate counsel’s failure to include these issues in the no-merit report wasn’t deficient.

court of appeals decision (3-judge, not recommended for publication); for Johnson: Philip J. Brehm; BiC; Resp.; Reply

Restitution – Psychiatric Care – Sexual Assault

Johnson, 17, had sex with 14-year-old W.M.K., resulting in conviction for 3rd degree sexual assault. Restitution ($10k), awarded for W.M.K.’s 10-month residence at Thayer Learning Center, (described as “a boot camp, behavior modification experience”) satisfied “substantial factor” test for causation:

¶7        WISCONSIN STAT. § 973.20(4m) authorizes the circuit court to provide restitution for violation of certain sexually motivated crimes, including WIS. STAT. § 940.225, in “an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment.”

¶8        Before the court may award restitution, “‘there must be a showing that the defendant’s criminal activity was a substantial factor in causing’” the expenses for which restitution is claimed.  State v. Johnson, 2005 WI App 201, ¶13, 287 Wis. 2d 381, 704 N.W.2d 625 (quoted source omitted).

…

¶13      In addressing whether W.M.K.’s need for care was a natural result of Johnson’s sexual assault, the circuit court correctly observed that the assault need only be a substantial factor, and not the only factor, in W.M.K.’s need for the services.  See id. The court then reviewed the evidence in the record and found that the assault was a substantial factor.  The court stated in its decision:

[C.D.’s] testimony was sufficient to prove that while she had the problems previously, as a result of this incident, she spent a month in the hospital.  Her circumstances as far as her psychiatric condition got worse such that the psychiatrist thought there was not much more that could be done.  The medications worked previously, but as I have indicated, not this time.  So I don’t believe that that is a, well, doesn’t defeat the restitution.  I believe that it was a substantial factor in producing the injury that W.M.K. had.

…

¶15      In this case, we cannot say that the court’s exercise of discretion was erroneous.  It is clear upon our review of the record that the court applied the correct legal standard, set forth an adequate factual basis and in concluding that the sexual assault by Johnson “was a substantial factor in producing the injury that W.M.K had,” reached a conclusion that a reasonable decision maker could reach.

Don’t let the “substantial” in “substantial factor test” fool you. Causation requires precious little; might be more accurate to say, “insubstantial factor test.” E.g., State v. Oscar A. Rash, 2003 WI App 32 (Rash liable for damage to victim’s car, where Rash abducted victim for 20-30 minutes, during which time unknown actor(s) broke into the now-unattended car; not otherwise relevant to this case except to illustrate expansiveness of causation). This is probably due to the fact that “Wisconsin does not follow the majority view in Palsgraf v. Long Island Railroad Co., 248 NY 339, 162 N.E. 99, 99-101 (NY 1928), under which the existence of a duty of care depends upon whether injury to the particular victim was foreseeable.” Gritzner v. Michael R., 2000 WI 68, ¶20 n. 3. In other words, there’s very little maneuverability on a challenge to causation.

Preceding generalization aside, the interesting thing here is that the opinion reveals absolutely nothing, other than mere temporal connection, to support the idea Johnson’s sexual activity with W.M.K. caused a worsening of her problems, e.g., ¶5 (“C.D. testified that, following the assault, W.M.K.’s problems were much more severe than before the assault[.]”). It is undoubtedly true that a preexisting condition doesn’t immunize the defendant from liability for exacerbating that condition, State v. Behnke, 203 Wis. 2d 43, 59, 553 N.W.2d 265 (Ct. App. 1996). Nor, though, does a preexisting condition relieve the victim of proving causation, id.: “We acknowledge that it is the victim’s burden to prove cause.  But she did that. … (I)f the defendant’s actions were the precipitating cause of the injury complained of, and such injury was the natural consequence of the actions, the defendant is liable, although the victim’s preexisting condition might have aggravated the injury. … The victim provided proof that she needed help from mental health professionals because of the attack.” That’s a big if, one the court here skips right over. W.M.K. proved that her condition worsened after having sex with Johnson: was it because of this activity? Or did the court fall prey to the “post hoc fallacy” (assault occurred; then condition worsened; therefore, assault must have causal connection to worsening). Remember that the burden (supposedly) is on the victim to prove damages, which includes causation. In this instance, the victim had available a wealth of medical evidence — she was treated at length before and after the offense; surely at least one medical expert could have testified that her condition worsened because of the offense. If one did, the opinion fails to mention it, so the assumption is that no such proof was offered. The question then becomes, why isn’t the absence of any proof of causation enough to defeat the claim?

Separately: the court declines to reach the issue of whether the Thayer Learning Center meets the condition of “professional services related to psychiatric and psychological care and treatment” required for restitution per § 973.20(4m), ¶¶16-21. Not much of a record, apparently, on the nature of the Thayer Center. Pity. If this is the self-same Thayer Learning Center, then it “is a boarding school that gives parents with disrespectful teens an opportunity to take control.” (Is Johnson paying 10k in restitution because his having sex with W.M.K. made her more disrespectful?) More on TLC, here, indicating that it “was a military based, Christian boarding school boot camp for troubled teens,” which closed in 2009. A military-based Christian boot camp? Would that fit within the “professional services” requirement noted above? A better record might have made it an interesting question.

Dane Co. DHS v. Samuel W., 2009AP2606 , District 4, 10/14/10

court of appeals decision (1-judge, not for publication); for Samuel W.: Eileen A. Hirsch, SPD, Madison Appellate

Under Sheboygan County DHHS v. Tanya M.B., 2010 WI 55, although a CHIPS dispositional order must set forth the “specific services” to be provided, it may do so implicitly. Applying that holding here, the court of appeals concludes that the conditions for return in the CHIPS order were not so “generic” they didn’t imply the ordered services: “… although the conditions in the present case are less detailed than those found inTanya M.B., they nevertheless establish the services, however minimal, that the Department was to provide. We therefore conclude that in light of the supreme court’s opinion in Tanya M.B., services were specified as required by WIS. STAT. § 48.355(2)(b)1,” ¶27.

State v. Joseph F. Brown, 2010AP832-CR, District 4, 10/14/10

court of appeals decision (1-judge, not for publication); for Brown: Adam Walsh; BiC; Resp.

It violates § 347.12(1)(a) to flash high-beam headlights within 500 feet of an oncoming vehicle if the latter’s high-beams are not themselves lit. Because Brown flashed his high-beams within 500 feet of an officer’s oncoming vehicle and, according to the trial court’s findings, the officer’s high-beams weren’t lit, the officer had probable cause to stop Brown for violating § 347.12(1)(a).

State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Motion to withdraw Plea, Pre-Sentence

Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just” reason for plea-withdrawal, ¶¶9-24. Standard for pre-sentencing plea-withdrawal discussed.

Anthony’s renewal of his motion to withdraw plea meets the same fate, ¶¶26-30.

Motion to withdraw Plea – Ineffective Assistance

Anthony’s claim of an inadequate investigation by counsel was unproven, ¶39. Moreover, counsel’s purported lack of preparation wouldn’t have caused Anthony to plead no contest pursuant to plea bargain, because although the plea bargain involved reduced charges the sentencing exposure was nonetheless substantial:

¶41      Having been aware of the serious consequences of his pleas—facing up to thirty years on count one alone—it makes no sense that Anthony would plead no contest simply out of fear that his counsel was unprepared for trial.  Anthony could have expressed his concerns about his lawyer to the circuit court during the plea colloquy, in lieu of stating that his pleas were knowingly, intelligently, and voluntarily given. Simply put, Anthony has not set forth “objective factual assertions” that persuade us that he would have pled differently or gone to trial, had he believed that Attorney Morales was more prepared.

The court cites no authority for its apparent assumption, as a matter of law, that a defendant wouldn’t accede to substantial exposure “simply out of fear that his counsel was unprepared for trial.” Why not, Fear that counsel’s lack of preparation would certainly result in more than 60 years (the original charge) compelled a change of plea so that Anthony could have some hope of release before senescence? Of course, the court also concluded that Anthony failed to show that counsel was unprepared, which makes the ensuing discussion unnecessary, and that’s probably where the matter should have rested.

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense, ¶¶9-12.

Self-Dense Instruction

Charged with two different forms of battery to the victim, Harris complains that the self-defense instruction, which the court read to the jury but once, was improperly limited to one of the charges. The court rejects the claim:

… The sequence here was that the trial court instructed the jury on battery to an injunction petitioner, then instructed the jury on substantial battery, and then gave the self-defense instruction.  The self-defense instruction was not limited to one crime or the other.  Rather, the instruction broadly stated:  “Self-defense is an issue in this case,” and then went on to instruct the jury on self-defense.  Thus, the overall meaning of the instructions were correct; the self-defense instruction applied to both charges.  Contrary to Harris’s contention, there was no chance that the jury was confused by the placement of the self-defense instruction, which, as noted, told the jury that self-defense was “an issue” in the case. …

“Nexus” Instruction, “While Armed”

¶18      Here, Harris was charged with using the ironing board as the dangerous weapon in committing the charged crimes.  Thus, the nexus between the weapon and the crime was automatically present.  See id. Moreover, the model instruction given here asked the jury to determine whether Harris committed “this crime while using a dangerous weapon.”  Any contention that there was error with respect to the ironing board and its nexus to the battery is wholly without merit.

Ineffective Assistance

Various instances of claimed deficient performance (not worth detailing) deemed non-prejudicial, ¶¶19-33, 42. Court’s discussion contains general statement of applicable test.

Record on Appeal

¶25, n. 1:

Harris also argues that his lawyer should have objected when the State introduced before and after photos of Harris to show that he did not have any injuries to disprove his claim that Lewis was the aggressor and Harris was simply defending himself.  Harris, however, did not raise this issue in his postconviction motion and so has forfeited his right to have us consider it.  See State v. Caban, 210 Wis. 2d 597, 604, 563 N.W.2d 501, 505 (1997). Further, the pictures are not in the Record, and therefore, we must assume they support the conviction.  See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992).  Although Harris does attach the pictures to his appellate brief, that does not put them in the Record.  See Jenkins v. Sabourin, 104 Wis. 2d 309, 313–314, 311 N.W.2d 600, 603 (1981).

Domestic Abuse Injunction

Mere scrivener’s error in underlying injunction petition doesn’t invalidate resultant injunction, ¶¶29-30. Laluzerne v. Stange, 200 Wis. 2d 179, 546 N.W.2d 182 (Ct. App. 1996), explained (injunction not valid where no petition filed).

Recusal

Trial judge’s post-trial, sua sponte recusal in separate case involving different victim didn’t require similar action in this case:

¶35      First, Harris did not request recusal, and thus, has forfeited this claim.  See City of Edgerton v.General Cas. Co. of Wis., 190 Wis. 2d 510, 519, 527 N.W.2d 305, 308 (1995) (party forfeits recusal claim if not timely raised).  Second, there is no merit to Harris’s claim that the trial court should have also sua sponte recused itself from this case, especially when the case had already been fully tried and all that remained was sentencing.

¶36      A court must recuse itself when it “determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”  WIS. STAT. § 757.19(2)(g).  This is a subjective determination.  See State v. American TV & Appliance of Madison, Inc., 151 Wis. 2d 175, 183, 433 N.W.2d 662, 665, (1989) (“[T]he determination of the existence of a judge’s actual or apparent inability to act impartially in a case is for the judge to make.”).  Here, the trial court found that it could be fair in this case.  Harris has pointed to nothing that even hints that this subjective determination was fraudulent.

Sentencing – Factors

¶49      We disagree with Harris’s contention that the trial court’s reference to him fathering other children was improper because it is clear from the context that these comments were part of background facts and the nature of his character to hurt women with whom he had children.  There is nothing in the trial court’s remarks that indicate that Harris was being punished for fathering children, but, rather, he was being punished because he battered the mothers of his children, and had done so in the past.  The trial court did not erroneously exercise its sentencing discretion.

Sentencing – Discretion – Consecutive Terms

The sentencing court’s reference to seriousness of the offenses, and the distinct interests involved in each crime, adequately explained why consecutive terms were appropriate, ¶51.

Sentencing – Factors – Criminal History

Sentencing reliance on unproved and uncharged crimes was proper, ¶54.