On Point

Bradley K. Darwin, No. 2009AP2608-FT, District IV, 6/10/10

court of appeals decision (1-judge; not for publication); for Darwin: Bill Ginsberg; BiC; Resp.; Reply

¶5     Darwin argues that the officer lacked probable cause to arrest him for OWI. The municipal court made the following findings of fact with respect to probable cause: Darwin signaled a turn, but failed to complete it; he denied drinking; he emitted an odor of intoxicants, his eyes were red, and his speech was slurred; he refused to perform field sobriety tests; and the officer observed bad driving. The municipal court based its findings on the testimony of the arresting officer, Darwin, and two of Darwin’s friends, and found the officer’s testimony more credible than the testimony of the other witnesses. Given our highly deferential review of the municipal court’s determinations of credibility, and our examination of the record, we cannot say that the municipal court’s findings of fact are clearly erroneous. We conclude that these facts, when viewed objectively and taken together with the officer’s experience, rose to the level of probable cause to arrest Darwin for OWI.

State v. Melody P.M., No. 2009AP2994, District IV, 6/10/10

court of appeals decision (1-judge; not for publication)

Civil conviction for an ordinance violation may be expunged under § 973.015.

Can’t provide any of the background beyond what’s recited in the opinion, because all traces have been removed from both circuit court and appellate dockets. Makes sense: if you’re going to order expungement then the order ought to have practical meaning. Here’s what we do know: Melody plea-bargained a misdemeanor retail theft down to an ordinance violation for the same offense, in 2000. She wasn’t entitled then to expungement because State v. Michaels, 142 Wis. 2d 172, 417 N.W.2d 415 (Ct. App. 1987) held that § 973.015 didn’t apply to civil forfeitures, reasoning that the statutory title, “Misdemeanors, special disposition,” was “persuasive” as to legislative intent. The title referenced “misdemeanors,” therefore forfeitures were off the table, and that was that. (True enough, caselaw does support consideration of statute titles; at the same time, § 990.001(6) clearly, or so one might think, provides that such titles “are not part of the statutes.” Not part of, yet integral to their meaning: a riddle for the ages.) Time marches on and in 2009, the statute was amended to eliminate the reference to “misdemeanors” in the title, which now simply says, “Special disposition.” Well, you can’t very well say that the statute excludes ordinance violations because of the titular reference to misdemeanors, then shrug off the elimination of that very reference.

¶7     The June 30, 2009 amendment to Wis. Stat. § 973.015, in addition to enlarging the maximum period of imprisonment a violation may have in order to be eligible for expungement, eliminated the term “Misdemeanors” from the name of the statute. Absent that term, there is nothing in the plain language of § 973.015 limiting its application to only misdemeanor offenses. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“statutory interpretation ‘begins with the language of the statute.  If the meaning of the statute is plain, we ordinarily stop the inquiry.’”). We therefore conclude that following the effective date of the amendment to the statute, § 973.015 applies not only to misdemeanors, but also to forfeitures.

Not discussed by the court: the amendment applies retroactively, otherwise of course relief wouldn’t be possible. And, what happens when the case is charged as an ordinance violation? This was a “CM” case, so the circuit court had continuing criminal-court jurisdiction over it, which made authority to enter an expungement order non-problematic. But at the same time, the expungement statute falls within the criminal procedure code, § 967.01, while ordinance cases don’t. Assuming that a violation prosecuted as an ordinance case doesn’t fall within an expungement provision, including § 973.015, does such contingent availability of expungement create an equal protection problem? You would think a decent argument could be made.

Barber v. Thomas, USSC No. 09-5201, 6/7/10

Credit for good behavior for a federal prisoner is awarded after, rather than before, the fact under 18 U. S. C. §3624(b)(1).

Of course, computation of federal sentence credit will ordinarily be a matter of indifference to the state practitioner, but the Court’s discussion of the rule of lenity may hold interest:

Fourth, petitioners ask us to invoke the rule of lenity and construe §3624 (2006 ed.) in their favor, that is, in a way that will maximize the amount of available good time credit. We may assume for present purposes that §3624(b) can be construed as imposing a criminal penalty. See Bifulco v. United States, 447 U. S. 381, 387 (1980) (rule of lenity applies to “interpretations of . . . the penalties” imposed by “criminal prohibitions”); but see Sash v. Zenk, 428 F. 3d 132, 134 (CA2 2005) (Sotomayor, J.) (holding that §3624(b) is not a criminal statute for the purposes of the rule of lenity). Even so, the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a “grievous ambiguity or uncertainty in the statute,” Muscarello v. United States, 524 U. S. 125, 139 (1998) (internal quotation marks omitted), such that the Court must simply “‘guess as to what Congress intended.’” Bifulco, supra, at 387 (quoting Ladner v. United States, 358 U. S. 169, 178 (1958)). See United States v. Hayes, 555 U. S. ___, ___ (2009) (slip op., at 13); United States v. R. L. C., 503 U. S. 291, 305–306 (1992) (plurality opinion). Having so considered the statute, we do not believe that there remains a “grievous ambiguity or uncertainty” in the statutory provision before us. Nor need we now simply “guess” what the statute means.

Grievous? Very odd term to use in this context. What about articulation of state principles? “The rule of lenity comes into play only after two conditions are met: the penal statute must be ambiguous, and we must be unable to clarify the intent of the legislature by resort to legislative history,” State v. Kevin F. McGuire, 2007 WI App 139, ¶34. Ambiguity unclarified by legislative history isn’t quite the same as “grievous” ambiguity. But that, as it turns out, is probably a mere detail, the larger point being that whatever rhetoric is employed, lenity is a rule of last resort.

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

Traffic Stop – U-Turn

¶8     As such, three rules of the road come into play.Under Wis. Stat. § 346.34(1), no person may turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Wis. Stat. § 346.31.Section 346.31(1) says that where there are markers, the operator of the vehicle must follow those markers.A turn to the left, made from the “straight lane” rather than the marked left lane, violated this law.Wisconsin Stat. § 346.33(1)(a) says that an operator of a vehicle shall not turn a vehicle at an intersection controlled by traffic signals so as to head in an opposite direction. Since the trial court believed the officer’s testimony that the turn was made from the “wrong lane” and since this “wrong lane” turn could only have been made at the intersection, from the record we have, the turn was made at the intersection where there were traffic signals. The U-turn violated this law as well.

The court goes on to strongly imply if not hold outright that Oetzman’s driving behavior, even if lawful in its component parts, nonetheless supported reasonable suspicion for the stop (lingering at a green light a full 5 seconds; going from left to right lane; crossing fog lane for 3 seconds; going “significantly under” the speed limit). “These facts, even if lawful in themselves, were building blocks of information, the totality of which was enough for the officer to suspect that the driver was intoxicated,” ¶10.

BAC Test – Admissibility

¶13 …  If a law enforcement officer testifies that he or she read the defendant the informing the accused form, that testimony tells the finder of fact that the officer did her statutory duty. A prima facie case that the procedures have been followed is then made. If the defendant believes that the form read to the defendant was the wrong one or was incomplete in some way, that is the defendant’s burden to prove because the burden of production has shifted to the defendant.  Therefore, it is the defendant’s responsibility to present evidence supporting the defense theory.

¶14 We reach this conclusion based on City of New Berlin v. Wertz, 105 Wis. 2d 670, 314 N.W.2d 911 (Ct. App. 1981). …

¶15 … In the same manner that we explained in Wertz regarding how questions as to the accuracy of the test performed go to the weight of the evidence rather than to the admissibility of the test, we reach the same answer with regard to the accuracy of the informing the accused form. In sum, the police officer testified that she read the informing the accused form to Oetzman. Thus, this evidence of the law enforcement officer having complied with the implied consent procedure was prima facie credible unless or until overcome by countervailing evidence in the eyes of the fact finder. We reject Oetzman’s argument.

Appellate Record – Composition

¶7     … It is the appellant’s duty to make sure that the appellate record contains all matters which this court needs in order to properly review an issue on appeal. State Bank v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). Absent such evidence, this court may assume that the missing record supports the trial court’s decision.  Id. As far as this court is concerned, the only evidence is that the turn took place at the intersection because that is the only place where there was a “straight lane” that was differentiated by a left-turn lane and right-turn lane. The trial court found that the turn was made from the “straight lane” and therefore impliedly accepted the officer’s account as credible. This finding is not clearly erroneous.

Oetzman sought to argue that an overhead photo of the intersection supported his claim that he could properly make a U-turn; as just seen, failure to make the photo part of the record dooms the claim. (Recall that just yesterday the court sanctioned counsel for, in part, referring to documents outside the appellate record.) Clear enough. Want to refer to a document on appeal? Make sure it’s part of the record. Fine. But look at the problem from a different angle, using U.S. v. Boyd, 475 F.3d 875 (7^th Cir 2007) as the lens: there, the court roundly criticized the parties because “no satellite photo (available free of charge from Google) was placed in evidence to indicate the physical surroundings,” given that the depiction was highly relevant to the issue. Didn’t impede the court in the slightest, though, from itself downloading the photo and appending it to the opinion, id., at 879. Where the issue is one of suppression, the rules of evidence don’t apply, §§ 901.04(1) and 911.01(4), which would make consideration of the photo easier still. Indeed, it is certainly possible (if not quite likely) that the “overhead photograph” put into play at Oetzman’s suppression hearing was a Google satellite download). But that raises another question: why can’t a party refer to such a photo on appeal whether or not part of the appellate record (taking into account relaxation of the rules of evidence on a suppression issue)? This, with any luck, is the depiction of the site in question — whether it is or not is a mere detail, though; you get the larger point. Still, it’s not difficult to sympathize with the court of appeals; why should it go out of its way to do your work?

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

Assistance of Counsel – Plea-Withdrawal

Counsel’s failure to file pre-sentencing motion to withdraw plea wasn’t due to failure to investigate claimed newly discovered evidence, hence wasn’t ineffective: according to trial court findings of fact, counsel indeed considered the value of this evidence and moreover allowed Townsend himself to decide whether to file the motion, ¶¶4-6.

Assistance of Counsel – Suppression Motion

Failure to file a suppression motion wasn’t ineffective, given findings of fact that the police interrogation wasn’t coercive, nor that Townsend ever suggested to counsel that it was, ¶¶7-10.

Townsend also claims that counsel was ineffective with respect to explaining the offense elements and, so Townsend said, by promising a sentencing result that was exceeded in the event. The court rejects these arguments on the basis on contrary findings of fact below, ¶¶11-15, and the discussion bears no more than this mention.

Assistance of Counsel – Collateral-Attack Counsel

¶16     Finally, Townsend asserts that the lawyer who was assigned to represent him at the Machner hearing gave him ineffective assistance. He claims this lawyer “did nothing but show up to the hearings,” “could have presented a better case” and did “[n]o investigation.” He claims this prejudiced him because “it swayed the trial court to believe that Townsend was not presenting a genuine postconviction proceeding.” Townsend does not, however, beyond these conclusory assertions, show what the lawyer who represented him at the Machner hearing should have done that he did not do. Accordingly, he has not shown that the lawyer gave him ineffective representation at the hearing. See State v. Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999).

A very sloppy passage, albeit in ways that don’t impact the result. First, the lesser detail: Byrge went up to the supreme court, 2000 WI 101, and even though the court of appeals was affirmed, this subsequent history should have been noted, for obvious reasons. Now, the greater problem: Townsend didn’t have the right to counsel at this stage of the game and therefore had no basis for alleging ineffective assistance in the way counsel litigated the Machner hearing. State v. Evans, 2004 WI 84, ¶32, 273 Wis. 2d 192, 682 N.W.2d 784 (“There is no constitutional right to counsel on a § 974.06 motion.”); Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings. … Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”). The court of appeals simply had no basis to reach the merits of Townsend’s argument.

court of appeals decision (1-judge; not for publication); for Manske: Jennifer R. Drow; BiC; Resp.; Reply

Traffic Stop – Reasonable Suspicion

¶16     Manske submits that because his driving was in some respects not consistent with an impaired driver, Galipo did not have reasonable suspicion to stop him. However, the test for reasonable suspicion is not whether all of the driver’s actions constituted erratic driving. Rather, the test is whether some of the truck’s movements gave rise to a reasonable suspicion that the driver may be impaired. Here, Galipo’s attention was drawn to Manske when he touched the fog line. Upon following the truck, Galipo saw the truck being driven close to the fog line and drifting within the lane. When Manske exited the ramp, Galipo saw the pickup truck actually cross the fog line. At this point, Galipo decided he had reasonable suspicion to stop the pickup truck. These observations fell well within the standard of “specific articulable facts and reasonable inferences from those facts” to create a reasonable suspicion that the pickup driver was violating the law. See Gammons, 241 Wis. 2d 296, ¶6.

Probable Cause to Arrest – OWI

Alcohol on breath + red, bloodshot eyes + “thick” speech + admission of having 4 drinks + field sobriety test failures = probable cause to arrest for drunk driving, ¶¶4, 19-21.

Sanctions – Violating Appellate Rules

Counsel is fined $150 for “multiple violations of the procedural rules,” ¶8 n. 5.

Counsel referred to “several rogue documents,” which is to say documents “not introduced into evidence below.” The court orders these documents stricken: “Assertions of fact in a brief that are not part of the record will not be considered on appeal. See Nelson v. Schreiner, 161 Wis. 2d 798, 804, 469 N.W.2d 214 (Ct. App. 1991).” Indeed, the court of appeals has long cautioned against referring to matters outside the record, State v. Aderhold, 91 Wis. 2d 306, 314-15, 284 N.W.2d 108 (Ct. App. 1979) (“any future indulgence in such practice will evoke more than a reprimand from this court”). But what apparently provoked the court’s ire was less the roguish references than repetitive reliance on uncitable cases. The no-cite rule has been changed, R. 809.23(3)(b) but as this result illustrates retains a number of restrictions which the court can and will enforce (including per curiams and unpublished cases released prior to July 1, 2009). Moreover, the court stresses that when properly citing to an unpublished case, the litigant should “alert[] the reader that it is being cited for persuasive value only.” One troubling matter: the court imposed the $150 fine without opportunity to be heard. No doubt the violations were plain, but isn’t there a due process right to argue whatever might be mustered by way of mitigation? Something in the nature of the right of allocution? “A fundamental tenet of American law is that folks have a right to be heard ‘at a meaningful time and in a meaningful manner’ before they may be deprived of a property interest. Mathews v. Eldridge, 424 U.S. 319, 333-335 (1976) (quoted source omitted); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).” Columbia Casualty Company v. Appleton Papers Inc., 2009AP206, ¶100, 6/8/10 (Fine, J. dissenting). Different context, to be sure, but why isn’t the larger principle the same? Why shouldn’t an attorney be entitled to be heard, if nothing else on the amount, before being deprived of $150? No need to cast about for an answer, it’s a rhetorical question.

court of appeals decision, affirmed 2011 WI 6; for Brenda: Leonard D. Kachinsky

TPR – Plea to Grounds

In taking a plea to TPR grounds, the court need not inform the parent of “sub-dispositions,” i.e., those which “pertain only to the effect on the child, addressing who will have guardianship and custody in the event the parent’s rights are terminated as a primary disposition,” ¶11.

Nor need the court caution that the person is thereby “waiving her constitutional right to parent,” ¶14, citing Dane County DHS v. James M., Nos. 2009AP2038, 2009AP2039, unpublished slip op. (WI App Mar. 18, 2010).

The court relies on James M., though unpublished, because § 809.23(3)(b) permits citation of a 1-judge opinion “for its persuasive value,” ¶14 n. 3. The court apparently finds this unpublished opinion quite persuasive:

¶16     In any event, neither party adds anything to the discussion presented in James M., and we discern no reason to depart from its holding that parents need not be informed they are waiving their constitutional right to parent by pleading no contest to the grounds for termination. We therefore adopt the thorough reasoning set forth in that case as our own. See id., ¶¶15-24. A copy of the James M. decision is available on the Wisconsin courts website at http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=48077.

You may also find the decision here. While we’re on the subject, just how should counsel handle an unpublished-but-citable opinion? In this instance, the court notes (perhaps with veiled disdain) that both parties copy-pasted from the unpublished decision, presenting its reasoning without attribution, and recommends instead, ¶15 n. 4: “Where, however, parties parrot significant portions of such a case, if permissible under the rule, we suggest they acknowledge it and provide citation and a copy of the decision.” Fine. But keep in mind that effective 1/1/11, Rule 809.19(2) (2010 WI 42) will require that the brief’s Appendix include “a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b).” In other words, this will soon be more than a suggestion, so you may want to start getting in the habit now. Just to round off the point, you must certify that the Appendix meets all requirements, and therefore an Appendix that falls short also means a certification that is false — something that subjects counsel to possible sanction, Werner v. Hendry, 2009 WI App 103, ¶11.