On Point

State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding: The sentencing court satisfied Gallion’s required linkage:

¶11      … Here, the court explained that it did not consider Thexton’s conduct so serious that it required Thexton to be incarcerated for the length of time that might be appropriate for other sex offenders, especially in light of his relative lack of a prior record. Nevertheless, the court noted that Thexton’s repeated violations of his probation conditions reflected a failure to understand that he must abide by rules, and it stated that a significant period of incarceration could help to bring that message home. The court also stated that Thexton might be in need of treatment that he could receive while incarcerated. Sentencing is not an exact science; and we are satisfied that there is a reasonable relationship between the objectives of Thexton’s sentence and its length. ^[6]

State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick

Issue/Holding:

¶17   Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial. Indeed, the court and the parties acknowledged the absence of controlling law in their discussion of the issue. While it may have been ideal for her counsel to argue that the court should question the juror, order the jury to return to deliberations or declare a mistrial, her counsel was not required to object and argue an unsettled point of law. See id. at 84.

State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro

Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.

Holding:

¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests. … ¶15 “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. The issue is, therefore, whether Dudley’s reliance on what he knew was the adamant opposition to alternatives to revocation by the agent following the agent’s Plotkin analysis, and Dudley’s assessment that the administrative law judge who would preside over the revocation hearing would almost never consider alternatives for absconders, especially in face of the agent’s opposition, and Dudley’s desire to get for Walker at least the perception that Walker was being cooperative so as to lessen the chance that the administrative law judge’s recommendation to the reconfinement court would be more severe than the agent’s two-year recommendation, made his decision not to explore alternatives to revocation deficient performance. We agree with the circuit court that it did not. ¶16 … We agree with the circuit court’s assessment that, based on its findings of fact, the likelihood that the alternatives to revocation identified by Walker at the evidentiary hearing on his petition for a writ of habeas corpus would have been accepted by the administrative law judge in lieu of revocation was virtually nil. … ¶17 A lawyer’s failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (“[W]hen there is ‘reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’”) (quoting Strickland in a slightly different context, 466 U.S. at 691). Based on the circuit’s findings of fact, this is the situation here. …

State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant is entitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.”¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better.

…

¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal.

The court, incidentally, exhorts the SPD to scrutinize attorney performance closely, albeit with an eye toward the limitations imposed by scarce reources, ¶5 n. 1: “We recognize that the limitation of resources makes monitoring of appointed counsel by the State Public Defender impossible. However, as appointing authority, it is also reasonable to expect a meaningful response to and inquiry regarding complaints about the appointed lawyer’s conduct that, if true, could seriously prejudice the client’s right to meaningful representation.” The court also uses a punctuation mark to express apparent shock at counsel’s late entry into the case, ¶13:“(first meeting his client at the preliminary examination(!).”

State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate

Issue/Holding:

¶14      A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives, we are left to guess as to what those objectives might be in relation to the fine. Gallion requires that we do more than guess. Id. , 270 Wis. 2d 535, ¶46. While we do not hold that Gallion requires a trial court to explain the reason for a specific amount of a fine (as it is likewise not required to explain a specific time of incarceration), we do conclude that under Gallion some explanation of why the court imposes a fine is required.

¶15      It is also necessary that a sentencing court determine at the time of sentencing whether a defendant has the ability to pay a fine if the court intends to impose one. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant’s ability to pay than is required as part of an order of restitution. See State v. Loutsch, 2003 WI App 16, ¶25, 259 Wis. 2d 901, 656 N.W.2d 781 (When court orders restitution at sentencing under Wis. Stat. § 973.20(13)(a), it must set “an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” which includes imprisonment, extended supervision and probation.). A fine is part of the sentence. Failure to complete one’s sentence by full payment of the ordered fine may have significant collateral consequences, such as a delay in restoration of certain civil rights.See Wis. Stat. §§ 304.078; 6.03(1)(b). A trial court must consider the defendant’s ability to pay the fine during the total sentence, that is, any term of probation, imprisonment and extended supervision.

…

¶19      Here, unlike in Milashoski, Ramel had no significant employment history, and the trial court made no finding, either implicit or explicit, that Ramel had the present ability to pay a fine.

…

¶21      Ramel promptly raised his inability to pay in his postconviction motion. The postconviction court denied the motion without a hearing, holding that the claim of no ability to pay was “premature” because ability to pay could only be determined when Ramel began extended supervision. That analysis is in error. See Kuechler, 268 Wis. 2d 192, ¶13 (“Because Kuechler timely raised the issue of ability to pay in his postconviction motion, the trial court had a duty to make a determination on that issue.”); State v. Iglesias, 185 Wis. 2d 117, 129, 517 N.W.2d 175 (1994) (“Because Iglesias timely raised the issue of ability to pay in her postconviction motion, we agree that the circuit court had a duty to make a determination on that issue.”) (relying on Will, 84 Wis. 2d at 404).

The court proceeds to “search the record to determine whether it supports … a finding” of ability to pay, ¶26. Discerning no support, the court vacates the fine, ¶27.

State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly

Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:

¶12      After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement, controls over Wis. Stat. § 340.01(9r), a more general statute. ……

¶14      Subsection (d) lists the type of convictions “under the law of another jurisdiction” that are to be counted when determining the penalty to be imposed pursuant Wis. Stat. § 346.65(2) and counts, along with other listed convictions, a conviction “that prohibits a person from refusing chemical testing.” Subsection (e) then separately and specifically provides only one type of revocation and only one type of suspension “under the law of another jurisdiction” that is to be counted when determining the penalty to be imposed pursuant § 346.65(2): a revocation or suspension “arising out of a refusal to submit to chemical testing.” Thus, the express language and context of this statute distinguishes the meaning of conviction and the meaning of suspension providing that out-of-state convictions for refusal, along with a list of other convictions, are to be counted, but with regard to suspensions, only those arising out of a refusal are to be counted. If suspensions for out-of-state OWI arrests were meant to be lumped in with convictions or determinations based on OWI arrests for counting purposes, subsection (e) would be redundant to subsection (d)’s language which already provides for counting convictions for refusal. If the legislature wishes to count other out-of-state suspensions for penalty enhancement purposes, it is for the legislature to express, not for this court to surmise when the statutory language provides otherwise.

The court again stresses that the foreign “suspension was not the result of a refusal,” something that would have come within specific authorization, ¶16. And, State v. Arthur C. List, 2004 WI App 230, distinguished, ¶15, on (apparent) ground that court supervision in that case was a judicial rather than administration determination.

One last matter, purely procedural but no less perplexing for that: this is a state’s appeal from a sentence, something the court all but fails to mention, let alone discuss. (A glancing reference, “The State appeals,” ¶5, tantalizes but alas nothing follows.) The problem is this: “The State’s authority to appeal in criminal cases, as a matter of right, is governed by sec. 974.05, Stats.,” absent which no appeal can be taken, State v. Eichman, 155 Wis.2d 552, 559, 455 N.W.2d 143 (1990). OK, then, just what subsection of 974.05 applies to this case? Would’ve been nice if the court of appeals clued us in instead of making us guess. As it turns out, Machgan moved to dismiss and in an unpublished, single-judge summary order the court determined that the appeal was authorized by § 974.05(1)(a), whose text is: “an appeal may be taken by the state from any … (f)inal order or judgment adverse to the state … if the appeal would not be prohibited by constitutional protections against double jeopardy.” The court’s analysis reduced to this:

… An appeal to review the sentence is not barred by the double jeopardy clause.See United States v. DiFrancesco, 449 U.S. 117, 132 (1980) (“the Government’s taking a review of respondent’s sentence does not in itself offense double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence”). “The double jeopardy clause … does not guarantee the finality of sentences.” State v. Pierce, 117 Wis. 2d 83, 87, 342 N.W.2d 776 (Ct. App. 1983).

Well. This does leave a bit to be desired, doesn’t it? Pierce is a resentencing case – when a defendant obtains resentencing, he can get a stiffer sentence – and has nothing to do with the present situation. DiFrancesco does squarely hold that double jeopardy principles don’t apply to sentencings the same way they apply to convictions or acquittals, which at least kicks the can part way down the road. But not all the way. The Court held that Congressional legislation affording a governmental “right, under specified conditions, to appeal the sentence,” doesn’t offend double jeopardy. Why? Because this very legislation informs the defendant has no expectation of finality in the sentence: “Although it might be argued that the defendant perceives the length of his sentence as finally determined when he begins to serve it, and that the trial judge should be prohibited from thereafter increasing the sentence, that argument has no force where, as in the dangerous special offender statute, Congress has specifically provided that the sentence is subject to appeal. Under such circumstances there can be no expectation of finality in the original sentence.” Doesn’t it beg the question, then, to say that 974.05(1)(a) authorizes this appeal? The Wisconsin   legislature, unlike Congress, simply hasn’t “specifically provided that the sentence is subject to appeal.” Machgan has a very plausible claim, unlike DiFrancesco, that his sentence settled the matter of its length once and for all. The problem, starkly put, is this: if there is no bar to review of Machgan’s sentence, then it’s hard to see how the state would be barred from seeking review of any sentence it thinks too lenient. The underlying issue would be different—exercise of discretion as opposed to determination of the maximum penalty—but that is a mere detail and has nothing to do with impeding prosecutorial review. (And take a glance at State v. Gary J. Knapp, 2007 WI App 273.)

State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett

Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:

¶13 Applying these principles, we conclude the only reasonable meaning of Wis. Stat. § 346.67(1)(a) is that it requires the operator of the vehicle to identify himself or herself as the operator. The introductory language of § 346.67(1) imposes a number of obligations on “the operator of any vehicle involved in an accident resulting in injury to or death of any person or in damage to a vehicle….” (Emphasis added.) Section 346.67(1)(a) requires “[t]he operator [to] … give his or her name or address and the registration number of the vehicle he or she is driving … to the person struck or to the operator or occupant of or person attending any vehicle collided with.” ^[4] (Emphasis added.) Implicit in giving the registration number “of the vehicle he or she is driving” is giving the information that he or she is driving the vehicle whose registration number is being provided.¶14 In addition, Wis. Stat. § 346.67(1)(b) requires that “[t]he operator shall upon request and if available exhibit his or her operator’s license.” (Emphasis added.) Such a request makes no sense unless the operator has first identified himself or herself as the operator.

¶15 Finally, we consider the purpose of Wis. Stat. § 346.67(1). The “two clear purposes” of Wisconsin’s hit-and-run statute are:

(1) to ensure that injured persons may have medical or other attention with the least possible delay; and (2) to require the disclosure of information so that responsibility for the accident may be placed.

State v. Swatek, 178 Wis. 2d 1, 7, 502 N.W.2d 909 (Ct. App. 1993) (citation omitted). The first purpose relates to para. (1)(c), which is not at issue in this case. The second purpose is the one that is relevant to construing para. (1)(a). In order to determine responsibility for the accident, it is necessary to know who was operating the vehicles involved in the accident. …

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^[4] In State v. Mann, 135 Wis. 2d 420, 424-25, 430, 400 N.W.2d 489 (Ct. App. 1986), we held that the word “attending” is not unconstitutionally vague and that an operator who leaves the scene of an accident without giving the specified information to the responding officer has violated this requirement; we rejected the argument that the officer was not a “person attending any vehicle collided with” because he was aiding the injured person and was not doing something in relation to the vehicle.

This result was probably foreordained by State v. Stephen D. Harmon, 2006 WI App 214, ¶14 (“the need for disclosure of information in order to place responsibility for the accident exists whether the operator acted with or without intent”), albeit in dicta.