On Point

City of Tomah v. Matthew Pudlow, 2010AP1044, District 4, 9/15/10

court of appeals decision (1-judge, not for publication); for Pudlow: Rick Niemeier, Maggie Premo; BiC; Resp.; Reply

Traveling in reverse at 30 mph, near an intersection with a highway, provided reasonable suspicion to stop:

¶13      The totality of the circumstances provided Officer Furlano with reasonable suspicion to justify an investigative stop of the vehicle in order to investigate Pudlow’s driving behavior, specifically a violation of the unsafe backing law, WIS. STAT. § 346.87. Under § 346.87, “[t]he operator of a vehicle shall not back the same unless such movement can be made with reasonable safety.”

¶14      Officer Furlano observed Pudlow engaged in conduct that could constitute unsafe backing, which posed a danger to any person or motorist who might have appeared in his path. Motorists may use reverse gear to back up their vehicles in a safe manner on roadways for short distances, at low speeds, under many circumstances without violating the unsafe backing statute. In contrast, the officer’s uncontradicted testimony, which was not meaningfully impeached by the defendant, was that the defendant backed up at approximately thirty miles per hour in an area in which one could expect other people or vehicles to appear.Officer Furlano described the stretch of Highway 21 where the backing occurred as being busy, even at night. Several twenty-four-hour businesses, including hotels, fast-food restaurants, and a bus station create traffic at all hours. Moreover, Pudlow reversed near a convenience store where vehicles frequently enter and exit.

¶15      In addition, it only fueled Officer Furlano’s concern about the defendant’s unsafe driving, and its potential cause or causes, that the defendant followed this dangerous backing maneuver by quickly accelerating forward through two successive turns.

Pudlow argued that the stop violated the mistake-of-law doctrine of State v. Longcore, 226 Wis.2d 1, 9, 594 N.W.2d 412, 416 (Ct. App. 1999): “Under State v. Longcore, if an officer makes a stop pursuant to a mistaken belief that a set of facts violates a law or incorrectly interprets the law when no law has actually been broken, the stop is not lawful.” Pudlow then argued that, because the officer “mistakenly believed that anytime a driver backs up in an intersection that is usually busy, the driver has violated Wisconsin’s unsafe backing statute,” the stop was unlawful under this doctrine. Brief, pp. 14-15. The court rejects the argument: “As the circuit court correctly observed, Longcore does not apply here. If Pudlow has a complaint, it is that the officer made a mistake of fact, not law, in believing that he had either reasonable suspicion, or probable cause to believe an offense had been committed, justifying a stop,” ¶16. Police actions are measured by an objective test; so long as the stop was objectively reasonable, it doesn’t matter what the officer subjectively believed.

The distinction between a mistake of fact and of law in this context is worth keeping in mind, even if further elaboration isn’t warranted by this case. Relatively recent authority on the point, US v. Gross, 550 F. 3d 578, 585 n. 2 (6th Cir. 2008):

… we note that the vast majority of our sister circuits to decide this issue have concluded that an officer’s mistake of law, even if made in good faith, cannot provide grounds for reasonable suspicion or probable cause, because an officer’s mistake of law can never be objectively reasonable. United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir.2006); United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir.2005); United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir.2003); United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000); United States v. Miller, 146 F.3d 274, 279 (5th Cir.1998); accord United States v. Coplin, 463 F.3d 96, 101 (1st Cir.2006) (“Stops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.”), cert. denied, 549 U.S. 1237, 127 S.Ct. 1320, 167 L.Ed.2d 130 (2007). …

State v. Drew E. Bergwin, 2010 WI App 137; for Bergwin: Roberta A. Heckes; BiC; Resp.; Reply

Manipulation of Adult Jurisdiction over Juvenile Offense

When  the State brings a criminal charge against an adult defendant for an offense committed as a juvenile, the State must affirmatively show that the delay in charging wasn’t intended to manipualte the system to avoid juvenile court jurisdiction, ¶11, citing State v. Becker, 74 Wis. 2d 675, 677, 247 N.W.2d 495 (1976) and State v. Montgomery, 148 Wis. 2d 593, 603, 436 N.W.2d 303 (1989). The record in this instance indisputably shows such manipulation: the intake worker’s notes, based on her conversations with the district attorney’s office, reflected a prosecutorial decision to charge (the still-juvenile) Bergwin as an adult, so that the intake worker simply closed her file without an intake conference and referred the matter to the district attorney’s office. This evidence, which amounted to “clear, credible evidence of manipulation by the State,” ¶13, wasn’t contradicted by any testimony from the prosecutor’s office, in contrast to other cases which involved evidence of an ongoing investigation or good-faith effort to locate the defendant, ¶15.

¶14      We have previously noted that law enforcement, intake workers, and the district attorney all serve important, but different, roles in our juvenile justice system. “[I]t is not the task of a juvenile intake worker to investigate the juvenile’s alleged crime.” J.W.T. v. State, 159 Wis. 2d 754, 761-62, 465 N.W.2d 520 (Ct. App. 1990). Nor is it the intake worker’s duty to determine whether a petition could actually be filed before inquiring into the appropriate disposition of the case.[5] Id. at 762. Instead, the purpose of the intake inquiry is to ascertain, on behalf of the court, the best interests of the juvenile and of the public. WIS. STAT. § 938.24(1). Juvenile intake workers must exercise independent judgment when determining whether to recommend that a petition be filed, enter into an informal disposition, or close a case within forty days of the receipt of the referral information. See WIS. STAT. §§ 938.24(3)-(5). In short, juvenile intake workers do not perform their statutory duties by simply acceding to the demands of other institutions.

…

¶16 The testimony elicited at the motion hearing establishes that the State inappropriately invaded the intake worker’s domain and improperly deprived the juvenile court of jurisdiction. The State’s actions circumvented the statutory juvenile justice process and, in turn, abrogated Bergwin’s right to due process of law. Accordingly, we reverse his convictions for burglary and, on remand, direct that those charges be dismissed.

Bail Jumping – Jurisdiction to Impose Conditions

¶17      Because the State improperly deprived the juvenile court of jurisdiction, we also reverse Bergwin’s bail jumping convictions. The adult criminal court lacked jurisdiction to adjudicate Bergwin’s case, and therefore also lacked authority to establish bond conditions. Cf. Becker, 74 Wis. 2d at 678 (“jurisdiction in a criminal court cannot be maintained on a charge brought after the child becomes eighteen, unless it is affirmatively shown that the delay was not for the purpose of manipulating the system to avoid juvenile court jurisdiction”). Further, even if the case had been properly filed in juvenile court, Bergwin could not be prosecuted for bail jumping because the Juvenile Justice Code does not provide for monetary conditions of release.[7] Accordingly, we reverse Bergwin’s bail jumping convictions and direct that those charges also be dismissed.

Sanctions – Appellate Violations

¶18      We also sanction Bergwin’s appellate counsel. Bergwin does not include citations to the record to corroborate the facts set out in his brief. An appellant’s failure to provide record citations violates WIS. STAT. RULE 809.19(1)(d)-(1)(e) and seriously hampers our ability to efficiently resolve the appeal. That burden is magnified where, as here, the respondent elects not to provide a full statement of the case. See WIS. STAT. RULE 809.19(3)(a)2. Failure to provide record citations does a disservice to the client, too, as it precludes any challenge on reconsideration to the facts stated in the opinion. State v. Haynes, 2001 WI App 266, ¶1 n.2, 248 Wis.2d 724, 638 N.W.2d 82. We therefore sanction Bergwin’s appellate counsel and direct her to pay $200 to the clerk of this court within thirty days of this decision. See WIS. STAT. RULE 809.83(2).

You have a due process right to allocution before a court may impose a contempt sanction, even for summary contempt committed in the court’s presence. Granted that a blatant rule violation is similar enough to misconduct committed in the court’s presence so as to support the rough equivalent of summary contempt: why doesn’t the right to allocution attach here as well?

State v. Robert Allen, Jr., 2009AP2596-CR , District 1, 9/14/10

court of appeals decision (3-judge, not recommended for publication); for Allen: Bradley J. Lochowicz; BiC; Resp.; Reply

Interrogation Request for Counsel – Re-Initiation by Suspect

Allen’s invocation of right to counsel terminated his interrogation, but he immediately re-initiated communication with the police by asking “what’s going on”:

¶15      “Even after a suspect in custody asks to speak with a lawyer, thereby requiring that all interrogation must cease until a lawyer is present, a suspect may waive his or her Fifth Amendment Miranda right to counsel.” State v. Hambly, 2008 WI 10, ¶67, 307 Wis. 2d 98, 745 N.W.2d 48 (citing Edwards v. Arizona, 451U.S. 477, 485 (1981); internal quotation marks and one citation omitted). To prove that a suspect waived the Miranda right to counsel, the State must demonstrate:  (1) “as a preliminary matter that the suspect ‘initiate[d] further communication, exchanges, or conversations with the police,’” Hambly, 307 Wis. 2d 98, ¶69 (quoting Edwards, 451 U.S. at 485; brackets in Hambly), and (2) that the suspect waived his or her Miranda rights voluntarily, knowingly and intelligently, see id., ¶70.

…

¶19      Despite Allen’s representations to the contrary, the context of his statement “to know what’s going on” shows that after initially invoking his right to an attorney, Allen initiated further discussion about the homicide investigation. Allen’s request referred to the homicide investigation—it evinced a willingness and desire for generalized discussion about the investigation. Cf. Hambly, 307 Wis. 2d 98, ¶82 (concluding that the context of the suspect’s statement that he did not understand why he was under arrest “evinced a willingness and a desire for a generalized discussion about the investigation”). His inquiry was not “so routine that [it] cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.” See Bradshaw, 462 U.S. at 1045 (“There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation.”).

Allen was interviewed multiple times after re-initiating contact; given that he demonstrably knew how to assert his rights, the court has no difficulty concluding that his subsequent waivers were voluntary, ¶¶20-23.

Assertion-Waiver, Right to Silence

Allen’s termination of each of the subsequent interviews didn’t work an absolute bar on further interrogation:

¶25      The propriety of resuming questioning once the right to counsel or silence has been invoked is governed by Michigan v. Mosley, 423 U.S. 96 (1975). See State v. Hartwig, 123 Wis. 2d 278, 284, 366 N.W.2d 866 (1985). The Hartwig court acknowledged that in Mosley, the United States Supreme Court focused on the following factors in concluding that the interrogation of a defendant was properly resumed and the defendant’s right to silence was not violated:

(1) The original interrogation was promptly terminated. (2) The interrogation was resumed only after the passage of a significant period of time. (In Mosley it was two hours). (3) The suspect was given complete Miranda warnings at  the outset of the second interrogation. (4) A different officer resumed the questioning. (5) The second interrogation was limited to a crime that was not the subject of the earlier interrogation.

Hartwig, 123 Wis. 2d at 284. The Hartwig court recognized, however, that the absence or presence of the Mosley factors was “not exclusively controlling” and did not establish a test that could be “woodenly applied.” Hartwig, 123 Wis. 2d at 284-85 (citation and internal quotations omitted). “The essential issue is whether, under the circumstances, the defendant’s right to silence was scrupulously honored.” Id. at 285.

¶26      Thus, police are not permanently barred from interrogating a suspect who has invoked the right to silence. After Allen invoked his right to silence at the end of each interview leading up to the ultimate interview with Detectives Peterson and Ball, police scrupulously honored those invocations. The interrogations resumed only after the passage of a significant period of time.[7] See id. at 285-86 (“What constitutes a ‘significant’ period must be interpreted in light of the circumstances of the case and in light of the goals to dispel the compulsion inherent in custodial surroundings and to assure the defendant that his right to silence will be scrupulously honored.”). Aside from the aborted interview with Detective Peterson, Allen was advised of his Miranda rights at the outset of each interview. Furthermore, with the exception of the ultimate interview, three different detectives (Detectives Ball, Peterson, and Applegate) interviewed Allen. See State v. Turner, 136 Wis.2d 333, 359, 401 N.W.2d 827 (1987) (establishing that re-interrogation by the same officer for the same crime does not by itself run afoul of Mosley). After considering the Hartwig factors, we conclude that the subsequent interviews did not violate Allen’s right to silence.[8]

Minor quibbles: The Mosley-Hartwig “scrupulously honored” test relates to invocation of right to silence, not counsel. And, the court cites with approval [footnote 8] the holding in State v. Shaffer, 96 Wis. 2d 531, 539, 292 N.W.2d 370 (Ct. App. 1980) that a nine-minute interval between invocation of silence and resumption of questioning did not violate Mosley. The quibble here is that the holding was overturned on habeas review, Shaffer v. Clusen, 518 F. Supp. 963 (ED Wis 1981). The state court, it is true, isn’t bound by a federal court ruling, but some mention ought to have been made of the subsequent history; besides which, there are good reasons to doubt the state-court result in Shaffer, with or without the habeas grant. In any event, Shaffer isn’t terribly relevant to the present case, which is why the quibble is minor and further discussion of the case unnecessary.

decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate

Issue (from AG’s petition for review):

Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?

Don’t you wish you could get discretionary review on the basis of a rhetorical question? You could … if only you were were representing the State; but that is itself merely the answer to a rhetorical question.

The court of appeals briefs in this case aren’t available on-line; neither is the decision, because it’s a summary order. Given this deficit of information, there’s not much to say presently. Except this: the case appears to raise a purely procedural issue, whether the court of appeals erred in ordering a hearing on an IAC claim. (To which might be added that the Rule 809.62 standards tend to get thrown out the window on AG petitions.) Assuming the court’s “headline” summary is accurate, then the issue relates to necessity of a hearing on whether Balliette’s trial counsel was ineffective for not hiring an accident reconstruction expert (and whether postconviction counsel was similarly ineffective for not raising this argument on direct appeal). The direct-appeal opinion (link above) also contains some background. If you want more details about the case, best bet would be to check the supreme court briefs, which will be available sometime down the road at the case information link above .

UPDATE: The court has now posted its version of the Issues:

Under what circumstances is an evidentiary hearing into the effectiveness of postconviction counsel required where a postconviction motion under Wis. Stat. § 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review?

Whether postconviction counsel was ineffective under the “clearly stronger” standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is “clearly stronger” than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue).

Cast in these terms, the Issue may well hold interest, at least for appellate practitioners. Not too much in Wisconsin caselaw on he point, which is how to measure appellate counsel’s performance in litigating a merits appeal. Smith puts its this way:

… it is still possible to bring a Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent. See, e. g., Gray v. Greer, 800 F. 2d 644, 646 (CA7 1986) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome”). With a claim that counsel erroneously failed to file a merits brief, it will be easier for a defendant-appellant to satisfy the first part of the Strickland test, for it is only necessary for him to show that a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief, rather than showing that a particular nonfrivolous issue was clearly stronger than issues that counsel did present. In both cases, however, the prejudice analysis will be the same.

For a stab at testable standards, see Franklin v. Anderson, 434 F. 3d 412 (6th Cir. 2006):

1. Were the omitted issues “significant and obvious?”

2. Was there arguably contrary authority on the omitted issues?

3. Were the omitted issues clearly stronger than those presented?

4. Were the omitted issues objected to at trial?

5. Were the trial court’s rulings subject to deference on appeal?

6. Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?

7. What was the appellate counsel’s level of experience and expertise?

8. Did the petitioner and appellate counsel meet and go over possible issues?

9. Is there evidence that counsel reviewed all the facts?

10. Were the omitted issues dealt with in other assignments of error?

11. Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?

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