On Point

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: The sentencing court need not state separately why it chooses consecutive rather than concurrent terms; rather, this determination is made by considering the same factors as inform sentence length, ¶¶45-46.

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Sentence was based on proper exercise of discretion, including gravity of offense and defendant’s character and “long-term treatment needs,” ¶¶38-44.

State v. Anthony L. Prineas, 2009 WI App 28
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: The sentencing court properly considered a count for which Prineas was acquitted, as well as uncharged, “sexually inappropriate behavior,” ¶28, citing State v. David Arredondo, 2004 WI App 7.

State v. Corey E. Young, 2009 WI App 22, PFR filed 1/7/09
For Young: Jeffrey W. Jensen

Issue/Holding: The trial court, in sentencing for first-degree intentional homicide, sufficiently explained why it was assigning extended supervision eligibility of 50 years’ confinement (rather than the 40 recommended by the State). Weight given each sentencing factor is committed to the trial court’s discretion, ¶24; the sentencing court in this instance reached its conclusion only after weighing a number of sentencing factors, ¶26; the court clarified on postconviction motion that it had “placed substantial weight on the ‘absolute egregiousness’ of the crime,” and “it is well within the purview of the trial court’s discretion to assign more weight to one sentencing factor over another,” ¶28.

¶29      Furthermore, even though the trial court is required to explain its sentencing rationale on the record, it is not required to explain the mathematical breakdown of how each sentencing factor relates to the term of confinement. See State v. Fisher, 2005 WI App 175, ¶¶21-22, 285 Wis. 2d 433, 702 N.W.2d 56. Additionally, where the trial court fails to provide precise reasons for its sentencing determination on the record, it is the duty of the appellate court “‘to search the record to determine whether in the exercise of proper discretion the sentence imposed can be sustained.’” Taylor, 289 Wis. 2d 34, ¶21 (quoting McCleary, 49 Wis. 2d at 276). Accordingly, we will not interfere with the discretion of the trial court in passing its sentence and we hold that the sentence is not clearly erroneous.

Johnbull K. Osagiede v. USA, 543 F.3d 399 (7th Cir 2009)

Issue/Holding: Counsel’s ignorance of rights available, under VCCR Art. 36, to her Nigerian national client was deficient:

Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992). The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. See 5 28 C.F.R. § 50.5. The law was on the books; the violation was clear. Simple computer research would have turned it up.The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In support of its argument, the Government asserts that no court had ever held that the Vienna Convention created individually enforceable rights in the criminal setting. This is simply incorrect … .

…

…(T)he Article 36 violation should have rung a bell with a reasonable attorney.

Significant caveats apply (as always! otherwise we’d have much less to do). The crux of this holding is that the VCCR safeguards individual rights, else you’d have a no-harm/no-foul summary affirmance. The 7^th was way out in front of the curve on that principle, Jogi v. Voges, 480 F.3d 822 (7^th Cir. 2007) (Art. 36 confers individual rights). Because Jogi was decided after Osagiede’s case was litigated in the trial court, it wasn’t determinative on the question of what his attorney should have known. But it certainly shows the 7^th’s leanings. And now the court has leaned still further, and determined that even before Jogi, reasonable competence required familiarity with the right to consular assistance. Here’s where it gets interesting, though. Our state courts have taken an entirely different tack, and have held “that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [he or she] has no standing to assert any remedy pursuant to the Vienna Convention,” State v. Jose Carlos Navarro, 2003 WI App 50, ¶1.Now what? You’ve got 7^th Circuit caselaw distinctly saying that the right is privately enforceable and that therefore counsel must be aware of its potential benefit, so that any failure to assert it is the product of considered strategy. But you’ve also got controlling state caselaw saying that this right is not privately enforceable, and that the defendant therefore doesn’t have standing to assert a violation. Our state courts aren’t (outside of judicial mandate in a specific case) obligated to follow the 7^th down this path. Neither Osagiede nor Jogi overrule the holding of Navarro. Technically, then, you might be able to ignore this new development and suffer no consequence. But, of course, that is not the way you want to practice law, nor is it in your clients’ interests. The point to be aware of is that state-court assertion of an Art. 36 violation will require discussion of Navarro (either as a minimalist approach: limiting it to the distinguishable issue of suppressibility of evidence for a “direct” violation; or maximalist: seeking its outright reversal by the supreme court).

Re VCCR and suppression of evidence: here.

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding: Trial court refusal to allow Prineas to substitute one retained counsel for another absent “an extraordinary reason,” where substitution would necessitate continuance of the scheduled trial over objection of the complainant and her family, upheld as proper exercise of discretion; Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008), distinguished:

¶24      We reach a different conclusion here. When it made the decision to deny Prineas his counsel of choice, the circuit court properly balanced Prineas’ request against the public’s interest in the prompt and efficient administration of justice. See Lomax, 146 Wis. 2d at 360. Several factors weigh in favor of the court’s exercise of its discretion, for example: Prineas did not specify the length of delay that would be required; he did not dispute his current counsel’s ability to try the case; the court considered the inconvenience to the court and the concerns of the victim; and Prineas provided no reason for substitution and the accompanying delay. See id.; see also State v. Wedgeworth, 100 Wis. 2d 514, 521, 302 N.W.2d 810 (1981) (court may assume that if there is a compelling reason existing why counsel cannot provide adequate representation it would have been mentioned).¶25      We acknowledge that on appeal Prineas presents an extensive argument that mirrors Carlson’s complaints of ineffective assistance of counsel and a breakdown in communication. Those arguments, however, are raised for the first time on appeal and will not be considered.  See Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (on review of circuit court’s decision to deny motion to replace existing retained counsel with new retained counsel, the appellate court should consider “the reasons presented to the trial judge at the time the request [was] denied”). If Prineas had concerns about the quality of representation he was receiving prior to trial, he had the opportunity to so advise the court at the motion hearing. The record demonstrates that the circuit court allowed both attorneys to speak in support of Prineas’ motion, but neither provided a substantive response. As the circuit court notes in is postconviction order, “How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?”

The trial court was explicit: “The court stated that it would not grant a continuance so close to the trial date unless Prineas or his counsel could ‘give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date,’” ¶4. (¶21: “not something that I would grant except in an extraordinary reason”.) Try as you might, you won’t see “extraordinary reason” among the factors informing discretion, ¶13. And, curiously, the court of appeals says nothing about the distorting effect of this onerous, extrajudicial requirement. Put it like this: a trial court tells you that to get what you want you have to come up something “extraordinary”; you can’t, and so you say little (why bother with a futile exercise?); and then, on appeal, the court of appeals says it’s your fault you didn’t say anything. The court’s rhetorical question—“How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?”—has it quite backward. How could Prineas give the court something to balance when the court announced it was improperly tilting the scales? Even so, when all is said and done, the only justification for refusing a continuance seems to be the complainant’s desire that the case “be done so she could get on with her life,” ¶4. Is that an appropriate basis to deny substitution of counsel? Interesting question; too bad the court didn’t forthrightly confront it. Instead, the court appears to be more interested in limiting Carlson to its facts. Coincidence that 2 of the 3 judges on Prineas’ panel were on Carlson’s (overturned) panel? You be the judge.

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel

Issue/Holding:

¶14      In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the U.S. Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144. “[T]he  Sixth Amendment right to counsel of choice … commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he [or she] believes to be best.” Id. at 146. However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited:

We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness.… The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.

Id. at 152 (citations omitted). Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her chosen counsel.  See Wheat, 486 U.S. at 159.¶15      Recently, the United States Court of Appeals, Seventh Circuit, affirmed this presumption, stating that under the Sixth Amendment, a non indigent defendant has a “right to select, and be represented by, one’s preferred attorney; thus, trial courts must recognize a presumption in favor of a defendant’s counsel of choice.” Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008). ^[2] Furthermore, the Fourteenth Amendment prevents a court from arbitrarily or unreasonably denying a defendant the right to obtain a continuance.  Id. at 1024-25. Accordingly, the precise issue presented by Prineas is whether the circuit court’s denial of his motion for substitution and a continuance was arbitrary or unreasonable and therefore violated his constitutional rights. Prineas asserts that, applying Carlson, the circuit court’s denial was error.