On Point

Sears v. Upton, USSC No. 09-8854, 6/29/10

United States Supreme Court decision

The state court concluded that in this death penalty case, counsel failed to conduct more than a cursory penalty-phase investigation (and thus failed to determine that Sears suffered significant frontal lobe damage and had endured significant childhood abuse). However, the state court also concluded that it couldn’t find prejudice because counsel adduced some mitigation — this latter conclusion, the Court now holds, plainly violated normative review of effective-assistance claims.

We certainly have never held that counsel’s effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant. …

A proper analysis of prejudice under Strickland would have taken into account the newly uncovered evidence of Sears’ “significant” mental and psychological impairments, along with the mitigation evidence introduced during Sears’ penalty phase trial, to assess whether there is a reasonable probability that Sears would have received a different sentence after a constitutionally sufficient mitigation investigation. See Porter, supra, at ___ (slip op., at 11); Williams, supra, at 397–398; Strickland, supra, at 694. It is for the state court—and not for either this Court or even JUSTICE SCALIA—to undertake this reweighing in the first instance.

State v. Timothy Charles Bauer, 2010 WI App 93; for Bauer: Catherine M. Canright; BiC; Resp.; Reply

Search-Incident – Automobile

By failing to address Bauer’s Arizona v. Gant argument, instead relying solely on State v. Fry, 131 Wis. 2d 153, 174, 388 N.W.2d 565 (1986), the States’ argument compels the court to reverse the suppression order:

¶9 Here, the circuit court denied Bauer’s suppression motion because it concluded the evidence recovered from his vehicle was obtained pursuant to a valid search incident to arrest. The court did not, however, have the benefit of considering Gant, which was decided roughly a year after the court denied Bauer’s pretrial motion. Regardless, whether a search is reasonable is a question of constitutional fact, which we determine independent of the trial court’s conclusion. State v. Griffin, 131 Wis. 2d 41, 62, 388 N.W.2d 535 (1986), aff’d, 483 U.S. 868 (1987). Bauer argues that per Gant, the search of his vehicle incident to arrest was unreasonable because he was already in custody and handcuffed, away from his vehicle’s passenger compartment, when the search commenced. We are inclined to agree.

¶10 We need not, however, resolve the issue. …

¶11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis. 2d at 174-75, is no longer good law, much less “black-letter law.” “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 129 S. Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86, 700 N.W.2d 899; State ex rel. La Follette v. Raskin, 30 Wis. 2d 39, 49-50, 139 N.W.2d 667.  We are perplexed that the State still relies on Fry despite Bauer’s reliance on Gant.[3] We deem the State’s failure to respond to Bauer’s Gant argument as a concession. See State v. Flynn, 190 Wis. 2d 31, 39 n.2, 527 N.W.2d 343 (Ct. App. 1994) (“We will not decide issues that are not, or inadequately, briefed.”); Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments are deemed conceded).

Stress the following point: the decision is “procedural,” which is to say, premised on inadequate argumentation by the State and carries not much if at all more weight than that.

Manufacturing THC – Sufficiency of Evidence

¶18 The jury heard that Bauer’s vehicle contained pruning clippers with green residue on them (but no detectable THC), some marijuana particles on the floor, and a key to the padlock on Wells’ hidden marijuana growing operation. Bauer admitted being in Wells’ home. The jury also learned that when Bauer was arrested, he told police marijuana plants “were beautiful plants, that God put them on the earth.” We conclude there was ample evidence on which the jury could rely to convict Bauer, especially given his possession of the padlock key directly tying him to the concealed growing operation.

State v. Justin H., No. 2009AP2935, District III, 6/29/10

court of appeals decision (1-judge; not for publication); for Justin H.: Leonard D. Kachinsky

¶9 However, even assuming Justin properly preserved a due process argument, we reject it.  Due process principles require that a juvenile against whom a delinquency petition has been filed be given “notice … sufficiently in advance of scheduled court proceedings … set[ting] forth the alleged misconduct with particularity.” State v. Tawanna H., 223 Wis. 2d 572, 576, 590 N.W.2d 276 (Ct. App. 1998). The purpose of this notice is “to inform the accused of the acts he allegedly committed and to enable him to understand the offense charged so he can prepare his defense.” State v. Wickstrom, 118 Wis. 2d 339, 348, 348 N.W.2d 183 (Ct. App. 1984).

¶10 Here, the delinquency petition alleged that “on or about Saturday, November 29, 2008 at 6:14 [p.m.] in the Town of Lincoln, Forest County, Wisconsin, [Justin] did have sexual intercourse with a child under the age of twelve, [Sylindria T.], contrary to sec. 948.02(1)(b), 939.50(3)(b) Wis. Stats., a Class B Felony.” While there is no question the assaults did not occur on that day, the report attached to the petition describes in detail the alleged conduct underlying the charges. It stated Sylindria reported she was assaulted once at her grandmother’s house and that she threw up afterwards. Justin testified he remembered this occasion and attributed Sylindria’s illness to drinking juice. This shows that the petition described the incident in sufficient detail to apprise him of the incident. The petition further stated Sylindria reported a second assault that occurred “sometime during the [week preceding November 29, 2008]” and, as with the first charge, described the episode in detail. Therefore, the record does not bear out Justin’s claim he did not have sufficient notice.

Sheboygan Co. DHHS v. Tanya M.B. / William S.L., 2010 WI 55, reversing unpublished court of appeals decision; for Tanya M.B.: Paul G. Bonneson; for William L.: Thomas K. Voss

CHIPS order entered under § 48.355(2)(b)1 “shall contain … specific services to be provided”; subsequent TPR based on lack of compliance with CHIPS conditions requires that the responsible agency made a reasonable effort to provide the ordered services. The court now holds that TPR is supported even if the CHIPS “specific services” were not a specific part of the CHIPS order, at least if they are implicitly discernible from the conditions set for return of the child(ren).

¶33  As stated, we conclude that the dispositional orders contained “specific services,” as required by Wis. Stat. § 48.355(2)(b)1.[11] We so conclude because § 48.355(2)(b)1. does not require a CHIPS dispositional order to separately list each individual service that the Department is to provide so long as the Department is ordered to provide “supervision,” “services” and “case management” and the order also provides detailed conditions that the parents must complete in compliance with the dispositional order.

¶34  The detailed conditions directed at changing the parents’ conduct establish the specific services that the Department is to provide, either directly or through arrangements with others. …

¶35 The dispositional orders also directed the Department to assist the parents in completing certain programs ….

¶36 The detailed conditions of return set out specific case management services the Department was to provide. …

F.T. v. State, 150 Wis. 2d 216, 441 N.W.2d 322 (Ct. App. 1989) (delinquency proceeding: “failure to include the conditions in the written order and the failure to explain them to the child at the dispositional hearing vitiate the court’s authority to impose sanctions for their violation”), distinguished:

¶46 The reversal of the circuit court decision in F.T. came about because the lack of notice in the order contravened the purpose of Wis. Stat. § 48.355(2)(b)7. and (6)(a) (1987-88).  Stated otherwise, the decision in F.T. was driven by the failure of the circuit court to give notice to a juvenile in a delinquency proceeding, which failure of notice affected the juvenile’s right to know of the conditions he must meet and the conduct he must eschew to avoid court sanctions.  See id. at 227-28.

¶47 In contrast, the apparent purpose of Wis. Stat. § 48.355(2)(b)1. is to assure that the Department will provide those services necessary to assist parents in meeting the court ordered conditions for the return of their children.  Tanya and William do not claim that the CHIPS dispositional orders were insufficient to cause the Department to provide the necessary services, nor is there any proof that the Department was not diligent in doing so.  See section II.C. infra.  Accordingly, F.T. does not support William and Tanya’s claim that the termination of their parental rights should be reversed.

Although the parents additionally argue that the Department failed its burden of proof, they base this argument “solely on the assumption that the dispositional orders failed to order any services,” ¶57. Given the holding contrary to this assumption, it  follows inexorably that the proof was adequate. The court nonetheless details the facts as some length, “to demonstrate that the record is replete with credible evidence presented at trial that supports the jury’s finding that the Department ‘ma[d]e a reasonable effort to provide the services ordered by the court,'” ¶¶58-82.

Two-vote concurrence would uphold termination on the ground that parents forfeited their argument through lack of objection. Concurrence makes telling point that majority “inexplicably” abandons “judicial restraint.”

¶112 By deciding that the conditions for return satisfy the “specific services” requirement under Wis. Stat. § 48.355(2)(b)1., the majority has created a different statutory provision than the legislature adopted.  The majority opinion violates “the principle that it is the legislature that chooses the words of a statute.”[34] The majority thus usurps a power not vested in this court and offends the fundamental doctrine of separation of powers embodied in the Wisconsin Constitution.[35]

Wait! It gets better, the concurrence hurling this accusation: “In its result-oriented effort to save the dispositional orders here, the majority seemingly allows future dispositional orders to be interpreted to impose unfunded mandates on the county,” ¶119 The concurrence certainly has an important, substantive point to make, but the pointed rhetoric is too obvious to pass by. “Result-oriented” is a harsh accusation (therefore best avoided altogether by the mere practitioner), its underlying sensibility captured quite nicely by Judge Fine, dissenting, in Lake Bluff Housing Partners v. City of South Milwaukee, 188 Wis.2d 230, 259, 525 N.W.2d 59 (Ct. App. 1994):

The law must be sufficiently predictable so that men and women can conduct their business with the assurance that the rules are not going to change in mid-stream. This requires that judges follow precedent. We must not, like the apocryphal “Eastern despot” mentioned by Sir Frederick Pollock and Frederic William Maitland in the introduction to their seminal treatise on the common law, “deal with every case according to the impression of the moment.” 1 F. POLLOCK & F.W. MAITLAND, THE HISTORY OF ENGLISH LAW xxvii (2d ed. 1899). It is the majority’s “impression” that Lake Bluff should win this case; and so it does. ^[3]

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[3] According to Louis Nizer, Justice Benjamin Nathan Cardozo “defined judicial process as the instinctive reaching of a conclusion and with subsequent research and reasoning to justify it.” LOUIS NIZER, MY LIFE IN COURT 444 (1961). That has it backwards. At times, of course, “subsequent research” contradicts the “instinctive conclusion” or the “impression of the moment.” When that happens, the result-oriented judge bends precedent. … Although I admire Cardozo, as we are all taught in law school to do, his result-first, reasoning-later approach is a dangerous jurisprudential methodology to adopt….

Ouch. (By the way, the supreme court subsequently reversed the Lake Bluff majority.) For a much blunter expression, see State v. Jewitt, 500 A.2d 233 (1985) (“Our decisions must be principled, not result-oriented.”) So, you can easily see where someone might take offense. Why harp on this seeming distraction? Two reasons. First, it signifies that during pitched rhetorical battles, the personalities on the court aren’t going to let the possibility of bruised feelings get in the way of candor; the deep ideological divide on the court isn’t going to be masked by prettified rhetoric. Second, there might be a bit of tu quoque at work: the accusation of an activist, result-oriented jurisprudence is one often leveled by so-called conservatives at so-called liberals; here, it is the liberal wing (or what’s left of it) raising that particular alarm. But don’t think that the concurrence’s criticism is merely rhetorical. The concurrence makes a very good case that the majority not only imposes “unfunded mandates” on local agencies but “offers only hazy guidelines as to what the obligations are, how they may be adequately satisfied, and who pays for the services,” ¶124. And, of course, the hazier the guideline the easier it might be in any given case to argue compliance.

McDonald v. City of Chicago, USSC No. 08-1521, 6/28/10

Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our caselaw, we hold that the Second Amendment right is fully applicable to the states.

The tally is 5-4 in favor of applying the 2nd to the states, with 4 votes in favor of the incorporation doctrine and 1 in favor of the Privileges and Immunities Clause. It’s where you end up, not how you get there, right? (And by the way, the clairvoyant Tom Foley called it months ago.)

Inquiring minds want to know: when will we see judicial invalidation of felon-in-possession? Not so fast. From the lead opinion:

… We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here.Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

For its part, the dissent stresses the very limited impact of the result (while nonetheless positing the literal destruction of “our Nation’s communities and … constitutional structure”): “Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home.” Slippery slope greased with paranoia. But it’s not as if the gun-control scheme at issue (Chicago’s ban on virtually all private handgun ownership) was preventing, to coin a florid phrase, the literal destruction of our Second City: “Ten people were killed and at least 44 others were shot across the city Friday night into early Monday, including a baby girl who suffered a graze wound to the neck when gunfire erupted at a Near West Side barbecue.”

But now that you know there’s a basis for asserting the 2nd A, there’s no reason not to. If nothing else, you’ll help prove Doug Berman correct (“I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms”). Ditto, Steven Calabresi (“The McDonald holding will lead to a slew of additional challenges against state and municipal laws around the country regulating or restricting the firearms rights of law-abiding citizens.” Law-abiding citizens: that is a bit of a catch, no?)

What about CCW? Post-Heller challenges haven’t fared well, e.g., Garber v. Superior Court, Cal App, 5/13/10. Still, it is worth recalling that our supreme court upheld the CCW ban on the basis it was a “reasonable” regulation, State v. Phillip Cole, 2003 WI 112, ¶¶20-27, whereas Heller rejects the idea that a “core (constitutional) protection (may be) subjected to a freestanding ‘interest-balancing’ approach.” Whether Cole may be reconciled on this score with Heller remains to be seen. But, and it is a very big but, the “core” protection was gun-ownership in the home. Transporting the argument, along with the concealed weapon, outside the home won’t be easy and isn’t made easier by stories such as this one. And that is before considering scholarly views such as Adam Winkler, Scrutinizing the Second Amendment (“the Second Amendment’s individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial review”).

court of appeals decision; pro se; Resp. Br.

Sentence Modification – DNA Surcharge

¶2        Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry, 2008 WI App 80, ¶10.

¶3        A motion to modify a sentence must be brought within ninety days of sentencing under WIS. STAT. § 973.19(1)(a), or within appellate time limits set forth in WIS. STAT. RULE 809.30. See State v. Norwood, 161 Wis. 2d 676, 680‑81, 468 N.W.2d 741 (Ct. App. 1991). Singleton did not move to modify his sentence until nearly seven years after this sentence was imposed, so his motion is untimely. Moreover, if we were to construe the motion as brought pursuant to WIS. STAT. § 974.06, which allows postconviction challenges in a broader set of circumstances, Singleton’s claim would fail because that statute may not be used to challenge the circuit court’s exercise of sentencing discretion “when a sentence is within the statutory maximum or otherwise within the statutory power of the court.” See Smith v. State, 85 Wis. 2d 650, 661, 271 N.W.2d 20 (1978).  Additionally, only jurisdictional and constitutional issues may be addressed in a Wis. Stat. § 974.06 motion, and Singleton raises neither here. See Smith, 85 Wis. 2d at 661.

¶4        Singleton contends that he should be allowed to obtain relief because his motion for sentence modification is based on a “new factor,” the recently decided Cherry case. See id., 312 Wis. 2d 203, ¶10. A motion for sentence modification based on a “new factor” can be made at any time. State v. Noll, 2002 WI App 273, ¶12, 258 Wis. 2d 573, 653 N.W.2d 895. “The term ‘new factor’ refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because … it was unknowingly overlooked by all of the parties.” State v. Kluck, 210 Wis. 2d 1, 7, 563 N.W.2d 468 (1997).  Our recent decision in Cherry does not qualify as a new factor. We have previously held that a post-sentencing change in the law is not a new factor for purposes of sentence modification because it is “not highly relevant” to the imposition of the original sentence. See State v. Trujillo, 2005 WI 45, ¶30, 279 Wis. 2d 712, 694 N.W.2d 933; State v. Tucker, 2005 WI 46, ¶13, 279 Wis. 2d 697, 694 N.W.2d 926.

Rock Co. DHS v. Calvin M. M., No. 2010AP816, District IV, 6/24/10

court of appeals decision (1-judge; not for publication); for Calvin M.M.: Brian C. Findley

Admission of hearsay, describing an act of domestic violence was harmless:

¶7        There are two reasons why we conclude admitting this apparent hearsay evidence was harmless error. We first observe that one of the elements the County had to prove at trial was that Calvin had not met all of the conditions for return. Calvin conceded that he had not met these conditions. Refraining from domestic violence was one of the conditions for return.  His concession would appear to obviate the need for the County to prove that Calvin committed acts of domestic violence. Although Calvin does not tie his argument that the officers’ hearsay testimony was improperly admitted to any of the elements that the County was required to prove, he does argue that the County admitted this evidence to prove that he engaged in domestic violence. Since Calvin conceded that he failed to satisfy the conditions for return, it was no longer necessary for the County to prove that Calvin committed acts of domestic violence.

¶8        There is another reason why admitting the alleged hearsay testimony was harmless. The record contains more than sufficient evidence to prove that Calvin committed domestic violence on at least two occasions. …