On Point

State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply

Sentence – Factors – Exercise of Constitutional Right

Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right, namely his determination to have his child visit him while incarcerated. The court acknowledges that due process “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” ¶19, quoting Troxel v. Granville, 530 U.S. 57, 66 (2000). However, the facts don’t allow Yunck to benefit from this principle.

First, assuming that there is indeed a due process right of visitation while imprisoned, “the sentencing court did not base the sentence on Yunck’s decision to have his daughter visit him while he was incarcerated. There is simply no evidence in the record that the sentencing court ever expressly or implicitly based its sentencing decision on a belief that Yunck deserved to be punished for having his daughter visit him in jail,” ¶25.

Second, consideration of this factor would have been proper. Sentencing consideration of a defendant’s exercise of constitutional right isn’t absolutely prohibited but, rather, is permitted if supported by “a reliable nexus” between criminal conduct and right asserted. ¶27, quoting State v. Fuerst, 181 Wis. 2d 903, 913, 512 N.W.2d 243 (Ct. App. 1994).

¶28      Here, the sentencing court explicitly admonished Yunck about his decision to go “through [his] daughter to try to contact [Zeyen]” and to “put[] [his] five-year-old daughter in the middle” of the injunction order. Such conduct falls squarely within the spectrum of behavior Fuerst held was permissible for the sentencing court to consider. See id. at 913. Yunck’s use of his daughter to contact Zeyen was not just related to his criminal conduct, it was criminal conduct in and of itself, amounting to an additional violation of the injunction. The sentencing court acted well within its discretion when it considered that conduct, how it reflected on Yunck’s character, and how his daughter’s regular visits with Yunck would facilitate that criminal behavior in the future.

The court also rejects the State’s argument that Yunck forfeited the issue. Contrary to this claim, Yunck preserved the issue by asserting in his postconviction motion that the sentence was improperly based on his desire for visitation while incarcerated and by citing Fuerst in support of the proposition, ¶20.

Sentence – Effective Assistance of Counsel

Counsel made a reasonable tactical decision not to argue in mitigation that Yunck and the abuse-order victim had an “informal agreement” to violate the order, and he therefore didn’t perform deficiently.

¶37      We conclude that this was a reasonable strategy for trial counsel to pursue. Indeed, some courts may not look favorably upon an informal agreement between an abuser and a victim, permitting the abuser to circumvent a court ordered injunction meant to protect the victim from harm—regardless of the purported purpose. And such an informal agreement, even if one was proven, is not recognized as an exception to the mandatory enforcement of injunctions set forth in WIS. STAT. § 813.12(7)(am)1.-2., which requires a law enforcement officer to enforce an injunction provided he or she has confirmed the injunction’s existence and there is probable cause of a violation. The statute provides no exception for enforcement based on informal agreements between the parties.

Nor was Yunck prejudiced. He could have himself informed the sentencing court of the agreement during his allocution. [An odd tack, to be sure. The client, after all, trusts counsel to make reasonable tactical decisions, and if this decision was unreasonable why should Yunck be left holding the bag. Besides, wouldn’t this mitigation argument have more credibility coming from an attorney?] Moreover, an “informal agreement” would neither explain nor mitigate the offense: Yunck’s criminal conduct fell outside “the boundaries” of the alleged agreement, ¶39.

Separately, counsel’s noting Yunck’s diagnosis as depressed, and as exhibiting “some obsessive behavior” that counsel further termed “ridiculous,” was part of a reasonable “strategy to acknowledge Yunck’s mistakes and then to place them in perspective for the sentencing court, ¶44.

State v. John D. Harris, 2009AP3140-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Harris: Byron C. Lichstein; BiC; Resp.; Reply

Testimony of an investigator relating the contents of a recording wasn’t inadmissible under the best evidence rule, § 910.02.

¶11 Although the best evidence rule generally requires an original recording to be played in court in order to prove the content of the recording, Wis. Stat. § 910.06 allows the contents of voluminous recordings that cannot be conveniently examined in court to be presented in the form of a summary. The narrow issue here is whether the recorded phone calls between Harris and Susan M. are “voluminous” within the meaning of § 910.06. This court agrees with the State and concludes that Investigator Buschmann’s testimony regarding the recorded conversations between Harris and Susan M. was properly admitted because the multiple recorded phone calls satisfy the requirements for voluminous recordings pursuant to § 910.06. Furthermore, the trial court’s failure to articulate § 910.06 as its reason for admitting Investigator Buschmann’s testimony does not prevent this court from affirming the trial court’s discretionary decision. See Clark, 179 Wis. 2d at 490 (“Where the trial court fails to adequately explain the reasons for its decision, we will independently review the record to determine whether it provides a reasonable basis for the trial court’s discretionary ruling.”).

The court stresses that the recorded calls were turned over to the defense ahead of trial: “the purpose of the best evidence rule is to prevent fraud on the trier of fact by denying it the ability to examine an original document.” Harris “was free to play the recordings for the jury,” ¶13.

Evidence – Chain of Custody

¶20 The law respecting chain of custody requires proof that is sufficient “to render it improbable that the original item has been exchanged, contaminated or tampered with.” B.A.C. v. T.L.G., 135 Wis. 2d 280, 290, 400 N.W.2d 48 (Ct. App. 1986). Wisconsin Stat. § 909.01 states that the requirements for authentication or identification are satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” “Alleged gaps in a chain of custody ‘go to the weight of the evidence rather than its admissibility.’” State v. McCoy, 2007 WI App 15, ¶9, 298 Wis. 2d 523, 728 N.W.2d 54 (citation omitted). “The degree of proof necessary to establish a chain of custody is a matter within the trial court’s discretion.” B.A.C., 135 Wis. 2d at 290.

¶21 This court agrees that the trial court did not err when it found that the State met the chain of custody requirements concerning the admissibility of the letter Harris allegedly wrote to Susan M. While there were some gaps in the chain of custody, the trial court properly admitted the letter into evidence, leaving any issues concerning the letter to go to the weight of the evidence and not its admissibility.

¶22 Given the facts, the testimony of Rindt and Investigator Buschmann provides sufficient proof that the letter had not been exchanged, contaminated, or tampered with. See B.A.C., 135 Wis. 2d at 290. By identifying the letter and envelope at trial and testifying that they were not altered in any way, Rindt provided “evidence sufficient to support a finding that the matter in question is what its proponent claims.” See Wis. Stat. § 909.01. Investigator Buschmann did the same by testifying that the letter in court was the same letter that he received from his partner. …

The court rejects Harris’s argument that chain of custody gaps are permissible only when the evidence is in law enforcement custody. Buschmann, a law enforcement investigator, obtained the letter from the addressee and and was able to testify to its condition; that, along with absence of any suggestion of tampering, was enough. “The necessary proof required for admission of the letter at trial was proof sufficient to support a finding that the letter was in fact what the State claimed it was, and a showing that it was improbable that the letter had been exchanged, contaminated, or tampered with,” ¶25.

State v. Robert Wendt, 2010AP75-CR, District 1, 8/17/10

court of appeals decision (1-judge, not for publication); for Wendt: Kirk B. Obear; BiC; Resp.

Reasonable suspicion supported temporary stop of driver of truck idling at 1:30 a.m. behind business in winter with it snow plow up.

¶16 Here, there were “specific and articulable facts,” as set forth by Sergeant Paul during her testimony, which could have led a reasonable police officer to believe that crime was afoot when Sergeant Paul first approached Wendt’s truck. See Terry, 392 U.S. at 21. Given that it was 1:30 a.m., the business at which the truck was idling had long since closed, and the truck was not plowing snow—in other words, there was no immediately discernable reason for the truck to be there—it was not unreasonable for Sergeant Paul to conclude that Wendt may be preparing to burglarize the business. Consequently, Wendt’s Fourth Amendment rights were not violated when Sergeant Paul approached his truck to ask him why he was there.

¶17  Wendt asks us to conclude that because there is a potentially innocent explanation for his actions—that he was in the parking lot to plow snow—that Sergeant Paul lacked reasonable suspicion to approach his vehicle. That is not the law. The Wisconsin Supreme Court has held that “reasonable inferences of criminal activity can be drawn from [seemingly innocent] behavior.” Waldner, 206 Wis. 2d at 59. “Suspicious conduct by its very nature is ambiguous, and the principal function of the investigative stop is to quickly resolve that ambiguity.” Id. at 60. That is exactly what Sergeant Paul did here.

State v. William Webber, 2010AP9-CR, District 3, 8/17/10

court of appeals decision (1-judge, not for publication); for Webber: Chris A. Gramstrup; BiC; Resp.

On charges of 4th degree sexual assault and obstructing, the sentencing court properly considered, as both aggravating and mitigating, Webber’s 30-year history as a law enforcement officer, as well as his nonconsensual videotaping of his ex-wife.

State v. Timothy Ray Anderson, 2009AP2416-CR, District 1, 8/17/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Jeremy C. Perri; BiC; Resp.; Reply

Anderson’s postconviction motion for plea withdrawal, on the ground he didn’t understand that a charge “dismissed outright” could nonetheless be considered at sentencing, was properly denied without hearing. The circuit expressly denied that the dismissed charge was factored into the sentence, and Anderson therefore is unable to show manifest injustice, and “the record conclusively establishes that Anderson is not entitled to relief, ¶¶17-22.

In effect, the dismissed charge wasn’t held against him, so he received the benefit of the plea bargain and can’t be heard to complain now about that very bargain, State v. Denk, 2008 WI 130, controlling; contrary authority distinguished on the ground that in those instances the bargain-for consequence was “a legal impossibility.”

An agreement to “dismiss outright” a pending charge puts the defendant squarely in a minefield, because the ramifications are simply not clear. The court alludes in this regard (¶17 n.5) to State v. Wesley, 2009 WI App 118, ¶20, which says: “Because we are unconvinced by both parties’ arguments regarding the definite meaning of the term ‘dismissed outright,’ and because we are satisfied that the agreement is hopelessly ambiguous to us, we must next determine whether the term was nonetheless unambiguous in Wesley’s mind at the time he pled, such that he did not knowingly and intelligently understand the consequences of his plea.” The court doesn’t have to wade into this thicket, given its conclusion that Anderson received the benefit of the “dismissed outright” term as he understood it.

Machner Hearing – Plea-Withdrawal

Anderson plea-bargained dismissal of a count of armed robbery and pleaded guilty to taking a car without owner’s consent: his postconviction motion for plea-withdrawal on the ground that counsel didn’t inform him that the State could argue at sentencing the allegation underlying the armed robbery charge was properly denied without hearing as conclusory.

¶25 Anderson has offered only the bald assertion that he would have gone to trial if he had known the facts concerning the alleged armed robbery would be considered at sentencing. He offers no explanation why he would risk going to trial on two counts, including one that carried a maximum penalty of “a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both,” see Wis. Stat. § 939.50(3)(c) (2005-06), rather than face a maximum penalty of “a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both,” see § 939.50(3)(h), where the trial court might consider the facts related to the dismissed charge at sentencing. Anderson’s assertion that he would have gone to trial is especially puzzling because he had already admitted to police that he drove the woman’s car without her consent, so he could not have realistically hoped for acquittal on that count. Thus, Anderson, a man with an extensive criminal history, would have subjected himself to conviction for a Class H felony, and possible conviction for a Class C felony, simply to avoid having a dismissed charge mentioned at sentencing for the lesser crime. Anderson’s postconviction motion makes no attempt to explain his reasoning.

7th circuit decision

Habeas – Filing Deadline – DNA Motion as Tolling

Price’s postconviction motion for DNA testing in Illinois state court didn’t toll the 28 U.S.C. § 2254 federal habeas deadline, and his habeas petition is therefore deemed untimely.

The court’s analysis relates to Illinois procedure. As will be seen, Wisconsin’s is meaningfully different and should yield a different conclusion. First, the obvious: subject to highly exceptional circumstances, once a state conviction becomes “final,” by reaching the end of the direct appeal process, 28 U.S.C. § 2244(d)(1)(A) imposes on 2254 petitions a habeas filing deadline of 1 year (from denial of cert if such a petition was filed) or 1 year and 90 days (if cert wasn’t sought, the 90 days representing the time for filing a cert petition). However, the deadline is tolled during the time that properly filed state post-conviction review was pending, 28 U.S.C. § 2244(d)(2). Price, while his direct appeal was pending in Illinois, filed a separate motion for DNA testing under 725 ILCS 5/116-3. Ultimately, he lost both the appeal and the DNA motion, but resolution of the latter dragged on well past the former. As a result, when he filed this habeas petition, he was within the 1-year deadline as measured against final resolution of the DNA motion, but outside the deadline as measured against conclusion of his direct appeal. Long and short of it: if the DNA motion is deemed “post-conviction review” then it tolled the 2254 deadline and his petition was timely; if the motion wasn’t in the nature of post-conviction review, then it tolled nothing and his petition must be dismissed. The 7th says it’s the latter.

Relying on a case construing our § 974.06 procedure, the court defines post-conviction review as hinging on “an independent and civil inquiry into the validity of a conviction and sentence,” quoting Graham v. Borgen, 483 F.3d 475, 479 (7th Cir. 2007). The Illinois DNA testing statute doesn’t satisfy this test because it is purely procedural and simply doesn’t empower the judge hearing the request to get at the validity of conviction or sentence:

… when a defendant moves under § 116-3 for forensic testing, the best that can happen is that the trial court grants the motion, the tests are performed, and the defendant receives the results. The defendant may choose to use the results of the DNA test in a separate post-conviction petition for relief claiming his or her actual innocence, but no hearing automatically follows. Further, nothing in the plain language of the statute or in any of the state court opinions of which we are aware gives the trial court the authority to release a defendant from custody under § 116-3.

The no-tolling conclusion turns, then, on the specific nature of Illinois procedure, as the court makes clear in noting a different result reached by the 5th circuit in light of different Texas procedure, Hutson v. Quarterman, 508 F. 3d 236 (5th Cir. 2007):

… As understood by the Fifth Circuit, Texas’s DNA testing procedure provides for an automatic consideration of the testing results that may ultimately lead to a defendant’s release from prison. The court also relied on a number of Texas state court opinions that it characterized as equating “the Texas statute providing for post-conviction DNA proceedings with habeas corpus proceedings in that both make a collateral inquiry into the validity of the conviction.” Id. at 239 (internal quotation marks omitted).

Unlike Texas’s procedure, a motion for post-conviction DNA testing in Illinois does not automatically lead to a court’s determination of the defendant’s actual innocence. Nor does a court have the authority to release a prisoner under § 116-3. Because of these important differences, we find the decision in Hutson inapposite. Cf. Brown, 530 F.3d at 1338.

And that brings us at last to Wisconsin’s post-conviction DNA testing procedure, § 974.07 which critically, like Texas’s and unlike Illinois’s, does expressly authorize relief against the conviction, subsec. (10) providing in pertinent part: “the court shall schedule a hearing to determine the appropriate relief,” including setting aside the conviction or granting new trial or sentencing. Pretty clear, then, that a properly filed § 974.07 motion would toll the deadline (assuming, of course, that it is filed within the deadline). It’s also clear that federal habeas litigation isn’t for the faint-hearted. If you want to take the cautious approach, the Price court itself illuminates the path:

We note that our decision here should not have the unintended consequence of forcing prisoners to choose between pursuing habeas corpus relief in federal court or DNA testing in state court. See Hutson, 508 F.3d at 239-40 (reasoning that “[c]omity . . . dictates that the federal courts give Texas courts the time to review these DNA claims and provide necessary relief without forcing convicted persons to choose between the two systems thereby undermining the remedy the Texas legislature has provided”). As other cases have made abundantly clear, a prisoner who wishes to pursue both federal habeas relief and move for DNA testing under § 116-3 may timely file his or her habeas petition and then move to stay the federal proceedings while the Illinois courts consider the DNA testing motion. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); Newell v. Hanks, 283 F.3d 827, 834 (7th Cir. 2002). Although a motion under § 116-3 is not a collateral review of a judgment and therefore does not toll AEDPA’s statute of limitations, the principles of comity, finality, and federalism should strongly militate in favor of staying a prisoner’s federal habeas petition while Illinois courts have an opportunity to consider the prisoner’s § 116-3 motion, and where appropriate, subsequent collateral attack on the underlying judgment.

State v. Steve J. Will, 2010AP723-CR, District 4, 8/12/10

court of appeals decision (1-judge, not for publication); for Will: Mark Eisenberg; BiC; Resp.; Reply

Reasonable suspicion to stop Will’s truck is supported under the multi-factor test of State v. Guzy, 139 Wis. 2d 663, 407 N.W.2d 548 (1987): while authorities were monitoring a marijuana field an alarm was set off, confirming that someone was indeed in the field, and Will’s truck was the only vehicle subsequently seen on the road leading away from the field. Presence in an area of suspected criminal activity isn’t alone enough for a stop, but Will’s was not only the sole vehicle present, it was at a place and time consistent with the time it would have taken for a suspect to arrive from the spot where the marijuana was growing.

Wrong place, wrong time. The unfortunate Will apparently had nothing to do with marijuana, but he had had a few too many. And though he’d committed no traffic infractions, he smelled of alcohol and his eyes were — where have we heard this before? — “bloodshot,” ¶3. Dark country road, 9 p.m., too, ¶2, which gives the deputy bat-like discernment. Or maybe there’s a widely used training manual that sets out the characteristics accepted by courts for an OWI seizure.