On Point

court of appeals decision (1-judge; not for publication); for Schlapper: Owen R. Williams; BiC; Resp.; Reply

Probable Cause Based Search of Car, After Arrest of Passenger
Police had probable cause to search car, after passenger threw marijuana out window; search-incident limitations imposed by Arizona v. Gant therefore inapplicable.

court of appeals decision (3-judge; not recommended for publication); pro se; Resp.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

Forfeiture
Refusal of request to return seized cash upheld, where Morton was convicted of drug offenses: separate forfeiture action was unnecessary (Leonard L. Jones v. State, 226 Wis.2d 565, 594 N.W.2d 738 (1999), controlling); trial court forfeiture decision is discretionary, and Morton’s failure to provide transcript of trial court reasoning dooms attack.

court of appeals decision (3-judge; not recommended for publication); pro se; Resp.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

Postconviction Motion, IAC Claim
Denial of Machner hearing upheld: defendant’s affidavit in support of motion “conclusory,” and claims otherwise contradicted by contemporaneous record.

State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply

The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.

Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument, whether or not preserved below, in support of the appealed-from ruling. That’s the State’s typical posture, but not this time.

The State’s failure to preserve messages on cell phones it had seized and whose exculpatory value was apparent violated due process.

¶17      This is a rather unusual case in that, while the physical evidence was solely within the State’s possession, the concomitant electronic evidence was stored elsewhere and could have been accessed by both the State and the defense.  Given the facts of this case, however, it was reasonable for Huggett to expect that the State would preserve the voicemail recordings.  The sheriff’s department was immediately aware of the apparently exculpatory value of the evidence and confiscated the cell phones as part of its investigation.  It knew, or should have known, that the voice recordings would be automatically deleted by the cell phone provider at some point in time—this is common knowledge.  Additionally, the department was in a better position to preserve the evidence given its collective investigatory experience and access to necessary technical equipment.

¶18      By creating an expectation of preservation, the State became responsible for ensuring that it occurred.  Huggett was not charged with any crime until nearly four months after the incident—long after the apparently exculpatory evidence had been destroyed.  It would be fundamentally unfair for the State to induce reliance and then place the responsibility on Huggett for failing to seek and preserve the evidence prior to ever being charged.

The court reaffirms what it terms “the leading evidence preservation case, State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994),” to the effect that where the evidence “clearly exculpatory, a bad faith analysis need not be evoked; the defendant’s due process rights are violated because of the apparently exculpatory nature of the evidence not preserved,” ¶11. The court also rejects the idea that active destruction is required: “It is irrelevant, however, whether the State affirmatively destroyed evidence or passively allowed it to be destroyed,” ¶20. (In this instamnce the phone company destroyed the messages, but while the phones were in the State’s possession, and that was enough.) Nor would a mere description of the threats suffice: “Simply put, there is no replacement for a live recording of the threats screamed at Huggett shortly before Peach broke down the door to Huggett’s home,” ¶23. (The court thus implicitly distinguishes between text and voicemail messages.) Finally, the trial court remedy of dismissal with prejudice is upheld as a proper exercise of discretion, ¶¶25-28.

7th circuit decision; on appeal after remand, Eric D. Holmes v. Buss, 506 F.3d 576 (7th Cir 2007)

Competency of Petitioner, While Pursuing Habeas Relief

Given that petitioner is clearly incompetent (“He is deeply confused, obsessed, and delusional”) court orders habeas proceeding suspended until state shows his condition sufficiently improved.

This is a death penalty case, and the decision in the prior appeal indicated that it had “found no noncapital case in which such a claim (petitioner’s incompetency, on collateral attack) has been made.” By contrast, “in a capital case the petitioner may prefer to languish in prison than to see his claims for postconviction relief denied, opening the way to his execution.” The issue, then, is likely nonrecurrent. For a very detailed discussion of competency during the state, direct-appeal process, see State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994).

court of appeals decision (i-judge; not for publication); for Rice: Tracey A. Wood; BiC; Resp.; Reply

Search & Seizure – Denial of Motion to Suppress without Evidentiary Hearing

¶6        Regarding the applicability of [State v.] Garner [, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996) to the present case, we find no published cases applying Garner’s modified Nelson test to a pretrial motion to suppress anything other than witness identification evidence. However, nothing in the rationale of Garner would appear to limit Garner to witness identification evidence, and the supreme court in Velez has already expanded Garner to apply its modified Nelson test to pretrial motions other than those to suppress evidence. Moreover, Rice does not explain why Garner should not apply to his pretrial suppression motion,[2] and we are not aware of any principled reason it should not. Accordingly, we apply the Garner standard in reviewing the circuit court’s order denying Rice’s pretrial motion to suppress without an evidentiary hearing.

The court goes on to conclude — on the basis of documentation that Rice was required to submit in support of his request for a suppression hearing — that the stop was justified under the community caretaker doctrine, ¶¶13-26. The court separately determines that the arrest was supported by probable cause; the court rejects as “lack(ing) specificity” Rice’s claim that the HGN test was “administered improperly,” ¶30.

The result is highly problematic. Because it’s a one-judge appeal panel, the decision can’t be published — but it can now be cited for its persuasive effect; can, and will, be given the recurrent nature of the problem. So some extended commentary follows.

Reliance on Garner, which dealt with a motion to suppress identification, is misplaced: the ID movant bears an initial burden of persuasion to establish some taint in the identification process, e.g., State v. Hall, 196 Wis.2d 850, 878-79, 540 N.W.2d 219 (Ct. App. 1995), reversed on other grounds, 207 Wis.2d 54, 557 N.W.2d 778 (1997) (“Once the defendant meets his or her burden of showing that the identification was the product of an impermissibly suggestive procedure, the burden shifts to the State …”), while the state bears the burden from the outset on a warrantless search. It makes sense to require a movant who bears the burden of proof to assert those facts which will arguably satisfy that burden. But it doesn’t logically follow that a movant who does not actually bear the burden of proof similarly plead facts which might refute the opponent’s burden. Rather than explore this crucial distinction, the court of appeals merely noted that “the supreme court in Velez has already expanded Garner to apply its modified Nelson test to pretrial motions other than those to suppress evidence,” ¶6. But Velez in fact underscores the distinction: Velez bore the burden of proof on the matter for which he sought an evidentiary hearing, and thus that case does not support the court’s conclusion here.

A bit oddly, the court doesn’t cite § 971.30(2)(c), which mandates that pretrial motions “(s)tate with particularity the grounds for the motion and the order or relief sought.” While at first blush that requirement might seem to support the court’s conclusion, deeper inspection shows the contrary. “The rationale underlying § 971.30’s particularity requirement is notice — notice to the nonmoving party and to the court of the specific issues being challenged by the movant. Both the opposing party and the circuit court must have notice of the issues being raised by the defendant in order to fully argue and consider those issues,” State v. Caban, 210 Wis. 2d 597, 605-06 16, 563 N.W.2d 501 (1997). The pleading requirement, then, relates to notice of the theory or theories in support of suppression. The question should be, therefore, whether the state has adequate notice of the basis asserted for suppression, enough to insure that the state can adduce evidence satisfying its burden of persuading the court that the warrantless search and seizure was reasonable. See also People v. Williams, 20 Cal.4th 119, 130-31, 873 Cal. Rptr. 275, 973 P.2d 52 (1999) (“[D]efendants must specify the precise grounds for suppression of the evidence in question.… Defendants need only be specific enough to give the prosecution and the court reasonable notice.…”). Recent examples of inadequately pleaded suppression motion: State v. Roth, OR App No. A138078, 6/9/10 (“no appellate decision to date has held that a motion to suppress that implies–but does not expressly assert–that a challenged search was conducted without a warrant, is sufficient, without more, to satisfy the requirements of UTCR 4.060”); State v. Wilson, Del. Super. Ct. No. 0802030960, 5/23/08 (evidentiary hearing required only if suppression motion “alleges facts that, if proved, would require the grant of relief. Factual allegations that are general and conclusory or based upon suspicion and conjecture will not suffice.” LaFave and other treatises cited.)

Search & Seizure – Community Caretaker
Seizure upheld under community caretaker doctrine, court stressing:

¶21      …  First, the public interest in providing assistance to a motorist who appeared to be unconscious and in clearing a public right-of-way weighs heavily in favor of officer intervention.  Second, the surrounding circumstances supported the seizure.  It was late at night, the motor vehicle was sitting with the motor idling in a traffic lane of a parking lot, and the motorist, who appeared to be passed out, failed to respond to the officer’s repeated efforts to get his attention.  Despite Rice’s arguments to the contrary, the degree of overt authority used by the officer—specifically, activating her emergency lights—was appropriate and a reasonable safety measure under the circumstances.  Third, the claimed exercise of the community caretaker function involved an automobile.  See Cardwell v. Lewis, 417 U.S. 583, 590-91 (1974) (persons have a lower expectation of privacy in a vehicle than in their home).  Finally, the circumstance of a vehicle parked in the right-of-way under the control of an unresponsive individual called for the officer to stop and investigate; there were no other feasible, less intrusive alternatives to the officer’s actions under the circumstances.

The court does, though, acknowledge “that an officer’s subjective intent in stopping or detaining an individual was and continues to be a factor in determining whether an officer’s actions constitute a bona fide community caretaker function at the time the circuit court issued its decision,” ¶24.

Padilla v. Kentucky, USSC No. 08-651, 3/31/10

In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill , 474 U. S., at 57; see also Richardson , 397 U. S., at 770–771. The severity of deportation—“the equivalent of banishment or exile,” Delgadillo v. Carmichael , 332 U. S. 388, 390–391 (1947) —only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation. ¹⁵

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson , 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

Padilla says he pleaded guilty because his attorney misadvised him he wouldn’t get deported (as it turned out, deportation automatically flowed from conviction). The KY supreme court said the misadvice didn’t matter because deportation is a mere collateral consequence of the plea. The Court now reverses. It might have taken the narrow route, which is that affirmative misadvice on a collateral consequence invalidates the plea. (You can find some of the more recent Wis cases on direct vs. collateral consequences of pleas, here; for example of affirmative misinformation on collateral consequence, see State v. Charles Brown, 2004 WI App 179.) The flip side is that if counsel says nothing (as opposed to providing misinformation) about a collateral consequence, then the client hasn’t been harmed. But Padilla goes farther than that, and says that counsel was obligated to inform Padilla that he would be deported on conviction. So, that does mean that deportation is a “direct” consequence of a plea? Or is the Court saying that you’ve actually got to go through a check list of collateral consequences? Well, it’s surely not the latter. But it’s not clear the former is true either. Instead, the Court stresses “the unique nature of deportation,” which makes it “uniquely difficult to classify as either a direct or a collateral consequence.” Net result: “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Some lawyerly qualifications follow, such as “when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”

Where does all this leave us? Wisconsin already requires that the potential for deportation be made part of the plea colloquy, § 971.08(1)(c); State v. Sisakhone S. Douangmala, 2002 WI 62, so there won’t necessarily be much change in that respect, though that depends on how attorneys currently discharge this statutory obligation. The colloquy warns the defendant that a guilty plea “may result in deportation.” That’s probably not enough to satisfy Padilla where deportation is automatic (for the obvious reason that “may” isn’t “must”; and that Padilla mandates “the duty to give correct advice” with respect to a “clear” consequence of deportation). And when deportation is not automatic? Then, Padilla says, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” What it boils down to, then, is that the statutory colloquy falls short where deportation is mandatory, and counsel will need to make sure the knowledge gap is filled.

Whether there is any basis for revisiting the way we cavalierly dismiss various consequences as merely “collateral,” e.g., State v. Wayne A. Sutton, 2006 WI App 118 (initial confinement exposure); State v. Bollig, 2000 WI 6, ¶27 (sex offender registration); State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (1996) (potential for ch. 980 commitment); State v. Anthony A. Parker, 2001 WI App 111¸ ¶9 (restitution), remains to be seen. Other jurisdictions, e.g., State v. Denisyuk, 2010 Md. App. LEXIS 49 (March 29, 2010) (“The Sixth Amendment does not impose on a lawyer a duty to inform a client contemplating a guilty plea about collateral consequences generally or the risk of deportation specifically”) will have to go back to the drawing boards. And that includes the Seventh Circuit on habeas review, Santos v. Kolb, 880 F.2d 941 (7th Cir. 1989) (“The failure of petitioner’s counsel to inform him of the immigration consequences of his guilty plea, however unfortunate it might be, simply does not deprive petitioner of the effective assistance of counsel guaranteed by the Constitution”).

The Immigrant Defense Project appears to be a useful, readily accessible resource; its “Padilla Practice Advisory” is available here. Alex Lockwood has prepared a Wisconsin-specific chart relative to immigration consequences, here. Also see, “Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction” (and if its prediction that “Padilla may turn out to be the most important right to counsel case since Gideon,” then much litigation awaits).

UPDATE. Bronx Defenders attorney J. McGregor Smyth Jr. has posted “‘Collateral’ No More — The Practical Imperative for Holistic Defense in a Post-Padilla World…Or, How to Achieve Consistently Better Results for Clients,” St. Louis University Public Law Review, Vol. 31, p. 139, 2011, the title well-explaining the thrust (“In short, this Article outlines a framework for how defenders can and should use Padilla as leverage to get better results. … The Supreme Court’s reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function.). A few examples given of caselaw extensions of Padilla beyond deportation, see fn. 14. Lest anyone thinks that “Padilla” is some sort of all-purpose principle, see U.S. v. Reeves, 7th Cir. No. 11-2328, 8/20/12 (“Indeed, Padilla is rife with indications that the Supreme Court meant to limit its scope to the context of deportation only.”).