On Point

State v. Seneca Joseph Boykin, 2009AP2499-CR, District 2, 9/22/10

court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.

A probation agent may not evade the warrant requirement by acting as a “stalking horse” for the police in conducting a warrantless search of a probationer’s residence, ¶10. In this instance, probation officer Navis, acting on reliable information that Boykin was using and selling cocaine, went to Boykin’s home at the suggestion of and accompanied by police officer Spaulding, to conduct a home visit. Once there, Spaulding opened Boykin’s bedroom door “for protective purposes” … and you can guess what happened next, on this suppression appeal of a drug conviction.

¶12      Relying on the trial court’s findings of historical fact, we review de novo its determination that the search was a probation search, not a police search. First, the trial court’s findings indicate that it was Navis who instigated the search based on the information provided to her by Stulo and Spaulding. The fact that the police provide the information that leads to a probation search does not make the probation search unlawful, nor does an agent’s cooperation with law enforcement change the nature of the search.  Hajicek, 240 Wis. 2d 349, ¶33 (citing State v. Griffin, 131 Wis. 2d at 57, and State v. Flakes, 140 Wis. 2d 411, 427, 410 N.W.2d 614 (Ct. App. 1987)). Second, the trial court found that Spaulding took the lead in pushing open the door for protective purposes. When a probation officer conducts a search while police are present only for protective purposes, the police presence does not change the nature of the search. Hajicek, 240 Wis. 2d 349, ¶30 (citing State v. Griffin, 131 Wis. 2d at 62-63).

¶13      Finally, we acknowledge, as the trial court did, that the interaction of Spaulding and Navis preceding the search requires close attention. However, the cooperation of law enforcement and probation supervisors for the purpose of preventing crime is a specific goal of probation supervision. Hajicek, 240 Wis. 2d 349, ¶33 (citing WIS. ADMIN. CODE § DOC 328.01(5) (June 1999)). Here, we conclude that the search of Boykin’s bedroom was a probation search conducted by and under the direction of Boykin’s probation agent. “[A] probation officer cannot be a ‘stalking horse’ of law enforcement if the probation officer instigated the search.” Wheat, 256 Wis. 2d 270, ¶21. We therefore uphold the trial court’s denial of Boykin’s motion to suppress evidence.

Probation-search standard of review spelled out, ¶9; standard stuff.

Sentencing Discretion

¶15      Sentencing is well within the discretion of the trial court, State v. Larsen, 141 Wis. 2d 412, 426, 415 N.W.2d 535 (Ct. App. 1987), and the trial court has great latitude in determining a sentence, State v. J.E.B., 161 Wis. 2d 655, 662, 469 N.W.2d 192 (Ct. App. 1991). On appeal, our review is limited to determining whether there was an erroneous exercise of discretion. Larsen, 141 Wis. 2d at 426. “[S]entencing decisions of the [trial] court are generally afforded a strong presumption of reasonability because the [trial] court is best suited to consider the relevant factors and demeanor of the convicted defendant.” State v. Gallion, 2004 WI 42, ¶18, 270 Wis. 2d 535, 678 N.W.2d 197 (citation omitted).

…

¶17      Here, the sentencing transcript reflects that the court identified the factors it considered and its objectives and fashioned a sentence well within the permissible range. The court noted that at the time of the current offense, Boykin was on probation for a charge of possession of THC as a repeat drug offender. The court observed that Boykin was putting himself at great risk, as well as his grandparents, by possessing THC again. The court also noted that during a previous period of probation, Boykin had been the subject of two violation investigation reports, had not completed an intervention program, and had two positive drug tests. The court determined, “Clearly confinement is necessary here. The problem that I see is that on probation in the past, they’ve tried to give you some counseling, tried to put you on the right path, Mr. Boykin, but that has not been … fruitful.” While Boykin is correct that the court did not specifically address the length of confinement, it is readily discernable from its observations that the length of confinement is tied to Boykin’s need for rehabilitation and the court’s need to impress upon Boykin the seriousness of his conduct.

Separately: a sentence “well within the maximum sentence limit … cannot be considered excessive,” ¶18.

Sentence – Oral Pronouncement

Discrepancy between oral pronouncement and judgment of conviction (in that latter reflects ES term 2 years’ longer than former) results in “remand to the trial court for a determination of whether the written judgment of conviction is inaccurate and requires correction,” ¶¶1, 19.

The court appears to have caught the discrepancy on its own — if so, kudos to the court. The controlling principle was stated relatively recently, in State v. Carla L. Oglesby, 2006 WI App 95:

¶15      … [T]he trial court’s oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.

¶16      When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis.  2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994). Thus, Oglesby’s appeal, and the State’s concession of error on this issue, are well taken. The trial court should have granted Oglesby’s motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in 2004CM401 and remand with instructions that the trial court enter an amended judgment reciting the maximum two-year term of probation. …

You’d think, then, there won’t be much to do on remand except correct a plain clerical error.

State v. James Stoner, III, 2009AP2963, District 2, 9/22/10

court of appeals decision (1-judge, not for publication); for Stoner: Joshua Davis Uller; BiC; Resp.; Reply

“Reopen-and-amend” plea bargains, “referring to those plea bargains where the State and defendant agree that a judgment of conviction, once announced, will be amended by the State upon the happening of some future event. … are illegal because judgments, once announced, may not be amended by a prosecutor,” ¶1. State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992); State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. Thus, effect could not be given Stoner’s plea-bargained disposition which reduced felony charges to 3 misdemeanors with a term of probation and the proviso that if he committed another crime or his probation was revoked, the already-entered plea would be vacated and he would enter a guilty plea to one of the originally-charged felonies. The court holds that the remedy is to return the parties to the pre-plea stage, the court rejecting Stoner’s argument that his plea to reduced charges must be kept intact because it was knowing and voluntary, ¶8 (“because the reopen and amend provision was a legal impossibility from the get-go, Stoner could not have knowingly bargained for it. … Under Dawson, a legal impossibility renders the resulting plea “neither knowing nor voluntary.” Dawson, 276 Wis. 2d 418, ¶14.”)

The court also rejects a double argument, premised on the idea that once Stoner was placed on probation he suffered punishment and therefore can’t be made to run the gauntlet again:

¶10      He acknowledges that his double jeopardy argument only works if he had an expectation in the finality of the previous judgment. See State v. Jones, 2002 WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844 (noting that “the analytical touchstone for double jeopardy is the defendant’s legitimate expectation of finality in the sentence”). And he further acknowledges the State’s argument that a plea which is legally unenforceable is not a plea to which a defendant can legitimately argue is final and binding. See State v. Helm, 2002 WI App 154, ¶17, 256 Wis. 2d 285, 647 N.W.2d 405 (holding that where a court imposes an illegal or invalid sentence, a resentencing that increases the sentence did not violate the defendant’s double jeopardy protections)….

¶11      … As the State points out, Stoner is not being faced with “reimposition” of a sentence. Rather, the sentence is a nullity. It is as if it never existed. To the extent that Stoner may argue that the placement on probation really happened and thus a curtailment of his liberty likewise really happened and cannot be erased, the plain fact is that the probation came with all kinds of conditions that were never fulfilled. If he had successfully completed his probation, he would have gained the advantage of a permanent shield from exposure to the two felony counts that were reduced to misdemeanors. And because he did not successfully complete his probation, he would have had to plead to a felony but for the illegality of the reopen-and-amend provision. In other words, he cannot reasonably argue that he expected finality of a sentence where probation was only a facet of the totality of the bargain.

Also of potential interest, at least at a level of general principle, even if not couched in double jeopardy terms: State v. Sepulveda, 119 Wis. 2d 546, as clarified on reconsideration, 120 Wis. 2d 231 (1984) (“As stated in the concurring opinion, the imposition of probation was a nullity upon the impossibility for the condition of probation to be satisfied. The trial court, given the impossibility of fulfillment, was then free to modify its original sentence by imposing a new sentence of three years imprisonment.”). But Sepulveda hadn’t really begun serving probation, he demonstrated to the trial court that probation wouldn’t accomplish the court’s explicit aim, so the court modified to an active sentence what was really a probation try-out that hadn’t gone into effect. Stoner, contrastingly, served time on probation before misbehaving (the opinion doesn’t say how long; from the briefs and CCAP it appears that it was about 1 year). This contrast does highlight the conundrum acknowledged if not quite resolved by the court: Stoner was punished, in that he did serve time on probation. His punishment is as if it never existed only in an abstract, not a real-world, sense. Granted that the plea bargain was, under controlling caselaw, illegal, does it follow that the passage of time could never confer a reasonable (or legitimate) expectation of finality? What if a probationer had served years, and only transgressed near completion of the term? Had paid restitution, costs, fine? Served jail time as a condition? Performed hundreds of hours of community service? Would those activities be as if they never existed? Questions are easy. And answers? you ask. That is what the “Leave A Comment – Submit” button is for.

decision below: 2010 WI App 42; for Beauchamp: Martin E. Kohler, Craig S. Powell

Issues (from Table of Pending Cases):

Does the confrontation clause bar admission of testimonial dying declarations against a defendant in light of Crawford v. Washington, 541 U.S. 36 and State v. Manuel, 2005 WI 75, 281 Wis. 2d 554, 697 N.W.2d 811?

Does a defendant’s right to due process of law restrict the substantive use of prior inconsistent statements?

Crawford explicitly left open “whether the Sixth Amendment incorporates an exception for testimonial dying declarations.” But Giles v. California subsequently repeated Crawford‘s recognition that dying declarations were “admitted at common law even though they were unconfronted,” 128 S.Ct. 2687, 2682-83 (2008). The court of appeals took “Giles’s pronouncement as to whether the confrontation clause governs dying declarations as binding,” and thus ruled that dying declarations can’t violate the right to confrontation. From the wording of the Issue-Statement (which in the absence of posted petitions for review is all there is to go on), that would appear to be what the supreme court will decide. Keep in mind as you track this case the admonition of the court of appeals that admissibility doesn’t automatically follow from absence of a confrontation analysis. Rather, § 904.03 may support exclusion in any given case; in any event, the dying-declarant’s credibility may be attacked under § 908.06, ¶12 n. 1.

The hearsay problem (substantive use of prior inconsistent statements) raises an interesting sort of variant on the usual sort of federal-state comity question. The 7th Circuit has laid down a more restrictive test for substantive admissibility of prior inconsistent statements admissibility: Vogel v. Percy, 691 F.2d 843 (7th Cir. 1982) on habeas review of State v. Vogel, 96 Wis.2d 372, 291 N.W.2d 838 (1980). The court of appeals declined to follow CTA7:

¶17      On federal questions, Wisconsin courts are bound only by the decisions of the United States Supreme Court. State v. Moss, 2003 WI App 239, ¶20, 267 Wis. 2d 772, 781, 672 N.W.2d 125, 130; McKnight v. General Motors Corp., 157 Wis. 2d 250, 257, 458 N.W.2d 841, 844 (Ct. App. 1990) (decisions of the Seventh Circuit are not precedent in Wisconsin state courts). We have found no published Wisconsin appellate decision that even cites Vogel, no less adopts its five guideline factors. Thus, the trial court was not bound by the Vogel guidelines, and, of course, neither are we.^[3]

^[3]  People v. Govea, 701 N.E.2d 76, 83 (Ill. App. Ct. 1998), also declined to apply the guidelines adopted by Vogel v. Percy, 691 F.2d 843, 846–848 (7th Cir. 1982), because those guidelines conflicted with Illinois law that allowed, inter alia, the admission of a witness’s prior inconsistent statements if: (1) “the witness is subject to cross-examination concerning the statement”; and (2) “narrates, describes, or explains an event or condition of which the witness had personal knowledge, and (A) the statement is proved to have been written or signed by the witness.” See 725 ILCS 5/115-10.1. 

Compelled to follow CTA7 is one thing; persuaded to follow it, something else. The court of appeals certainly had no authority to alter the supreme court’s decision in Vogel, but the latter court surely does. Whether it chooses to, of course, is the question at hand.

decision below: unpublished; for Brenda B.: Leonard D. Kachinsky; prior post, here.

Issue (from Table of Pending Cases):

Did the trial court correctly exercise its discretion in denying a parent’s motion to withdraw a no contest plea that grounds existed for termination of parental rights without an evidentiary hearing?

decision below: 2009 WI App 64; for Ninham: Frank M. Tuerkheimer; Bryan Stevenson; Rebecca Kiley

Issues (from Table of Pending Cases):

Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile.

Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.

Ninham got life without parole for first-degree intentional homicide, committed as a 14-year-old. Roper says that the 8th A doesn’t support the death penalty for a juvenile; Graham, that it doesn’t support juvenile life without parole for a non-homicide. Can you mesh these principles such that juvenile life without parole is impermissible altogether, even for a homicide? Such that juvenile life without parole is tantamount to capital punishment? The court of appeals answered no, at least with respect to Roper‘s reach, the decision having been handed down before Graham:

¶4        The Court’s reasoning in Roper was based “in large measure on the ‘special force’ with which the Eighth Amendment applies when the state imposes the ultimate punishment of death.” United States v. Mays, 466 F.3d 335, 340 (5^th Cir. 2006) (citing Roper, 543 U.S. at 568-69). The reasoning of Roper applies with only limited force outside the context of capital punishment. See United States v. Feemster, 483 F.3d 583, 588 (8^th Cir. 2007). The Roper Court recognized that children have an underdeveloped sense of responsibility that often results in impetuous and ill-considered actions and decisions. Roper, 543 U.S. at 569. Therefore, children are not as morally reprehensible as adults for committing the same offenses. In addition, children are more vulnerable or susceptible to negative influences and peer pressure. Id. The Court also recognized that the character of a child is not as well formed as an adult and there is a greater possibility that a minor’s character deficiencies will be reformed.  Id. at 570. However, these are factors the sentencing court should weigh when determining parole eligibility. Roper does not support the proposition that a sentence to life without parole for acts committed by a fourteen-year-old is always inappropriate regardless of the depravity of the crime, the juvenile’s character and the need to protect the public.

State v. Joseph Donald Peacock, 2010AP954-CR, District 3, 9/21/10

court of appeals decision (1-judge, not for publication); for Peacock: James R. Phelan; BiC; Resp.; Reply

Because the officer knew from previous contacts, including one a mere 6 days prior, that Peacock’s driver’s license was suspended, he had reasonable suspicion to stop Peacock’s vehicle even though there were multiple occupants and the officer couldn’t see the driver. State v. Newer, 2007 WI App 236, deemed controlling.

¶8        Wellens was not, however, aware of any facts inconsistent with Peacock being the driver. Just because it might also be reasonable to suspect Wellens was not the driver, this does not mean there was not reasonable suspicion that he was the driver; i.e., the standard is not reasonable doubt. “[T]he requirement of reasonable suspicion is not a requirement of absolute certainty:  ‘sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment ….’” Id., ¶7 (quoting New Jersey v. T.L.O., 469 U.S. 325, 346 (1985)). Further, that Wellen was revealed disclosing to dispatch that he could not tell who was driving merely demonstrates the facts here are comparable to those in Newer.

¶9        Peacock also argues Wellens lacked reasonable suspicion because he was unable to confirm Peacock’s license status prior to the stop and had no knowledge of the length of Peacock’s license suspension. We disagree. Wellen’s six-day-old knowledge was sufficiently fresh that it was reasonable to assume Peacock’s license was still suspended. And while Wellen’s credibility was certainly called into question, the circuit court’s acceptance of Peacock’s testimony that he held such knowledge was not clearly erroneous. Therefore, under the totality of the circumstances, we conclude it was reasonable to suspect Wellen was driving his vehicle with suspended operating privileges.

The essence of Newer is that an officer’s knowledge that the owner’s license is suspended provides reasonable suspicion to stop the vehicle as long as there are no other facts that suggest the owner is not the driver. 2007 WI App 236, ¶¶7-9. Thus, that court added a critical qualification, ¶2 – “We adopt the view articulated by the supreme court of Minnesota in State v. Pike, 551 N.W.2d 919, 922 (Minn.1996): that an officer’s knowledge that a vehicle’s owner’s license is revoked will support reasonable suspicion for a traffic stop so long as the officer remains unaware of any facts that would suggest that the owner is not driving.”

State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10

court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.

Battery – Self-Defense – Sufficiency of Evidence

A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.  Kubat then pushed Belcher, who “was the first to swing,”  leading Kubat to hit Belcher with the tire knocker — these facts sustain Kubat’s conviction for battery against a sufficiency-of-evidence argument.

Two high-testosterone jerks egging each other on: why is one guilty and not the other? The court doesn’t quite say, though one possible answer is suggested by the court’s précis of the “pertinent facts, including:  those leading up to the physical confrontation, that Kubat pushed Belcher first, that Belcher was the first to swing, and that it was merely the blow to the face with the tire knocker that Belcher was unsure of,” ¶6. The court’s analysis — granted, an apparently inadequate defense argument did neither Kubat nor the court any favors — is unilluminating. Maybe the idea is that Kubat committed the battery when he committed the first physically aggressive act, pushing Belcher. Or maybe the battery is premised on Kubat’s striking Belcher with the tire knocker. As to which, let our friends at bigstickcombat explain the virtues: “A tire knocker follows the characteristics I prefer in a stick –it stresses heft/weight and solidity over reach. I would rather a short stick be short and compact, yet heavy enough to deal a decisive blow.” Overreach, indeed, for Kubat to use this combat stick in response to Belcher’s mere “swing,”  enough so to prevent him from arguing some form of mutual combat, or the reasonableness of his response to Belcher’s own provocation, as a defense. UPDATE: Two days after release, ¶6 was amended so that it now reflects “that Kubat was the first to swing” (emphasis supplied). That change certainly clarifies things. We all make mistakes.

The court goes on to say that the evidence also supported a “provocation” instruction, which allowed the jury to strip Kubat of self-defense because of his “unlawful conduct,” ¶10. But the court doesn’t identify just what unlawful conduct he engaged in. It might be supposed that the unlawful conduct was his use of a potentially deadly weapon, the tire knocker. The tire knocker wasn’t necessarily a dangerous weapon, because it wasn’t designed as such,  Coleman v. State, 790 S.W.2d 369, 372 (Tex. App.-Dallas 1990), but it became one when Kubat used it in such a manner. Or maybe the court just thought Kubat more of a jerk than Belcher.

Sanctions – Improper Briefing

¶12      We sanction Kubat’s appellate counsel $250 for his filing of two false certifications and rules violations. We also sanction the State’s counsel $50 for her rules violations.  Counsel shall pay their respective forfeitures to the clerk of this court within thirty days of this decision. See Wis. Stat. Rule 809.83(2).

A pox on both their houses! With respect to Kubat’s counsel, multiple violations did him in,  ¶6 n. 3. Didn’t help that his “brief inadequately sets forth the trial testimony, fails to develop a coherent argument, and ignores the proper standard of review,” ¶6, all of which surely warmed the court toward lightening his wallet. But it was a false certification that did the trick, n. 3, something almost guaranteed to incur a sanction. And opposing counsel’s offenses? The fine is meted out for “violations,” which the court scatters in a couple of footnotes:  “fail(ing) to provide proper record citations, omitting the record number,” n. 3; and misciting a case holding, n. 6. In the proper case – no suggestion is made that this is it – the idea will have to be advanced that counsel is entitled to notice, opportunity to be heard and allocution before being deprived of his or her property. The court may then be compelled why it deems improper argumentation worthy of sanction in one case, but not another. Or, compelled why multiple violations by each side results in differential punishment by a factor of 5 (the guess here is that the false certifications provide the multiplier effect, on the assumption it is that much more egregious a violation; be nice, though, to have the court spell out as much). But even with the dawning of that happy day when the right to allocution is finally recognized, you do not want to have to explain why you filed a false certification; why, that is, you lied to the court about the contents of the very document on which your client pinned his hopes. If you pay attention to certification requirements, you won’t ever have to worry about explaining certification defects.