On Point

State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl

Issue/Holding:

¶6        A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. …

¶7        Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel. Hammill’s argument focuses on distinguishing his case from our decision in State v. Stockland, 2003 WI App 177, 266 Wis. 2d 549, 668 N.W.2d 810. In Stockland, the defendant collaterally attacked a prior OWI conviction. However, Stockland only produced a partial transcript of his plea colloquy. …

¶8        Hammill attempted, but was unable, to procure a transcript due to the destruction of the court reporter’s notes. ^[3] For this reason, we do not conclude, as we did in Stockland, that the mere absence of a transcript defeats Hammill’s collateral attack. However, Hammill still carries the burden of making a prima facie showing. …

…

¶11      On this record, we conclude Hammill has failed to make a prima facie showing that he did not knowingly and voluntarily waive counsel. His testimony does not contain facts demonstrating he did not know or understand information that should have been provided to him. See Ernst, 283 Wis.  2d 300, ¶25. Rather, Hammill simply does not remember what occurred at his plea hearing. Having failed to make a prima facie showing, Hammill’s collateral attack fails.

State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶7        Constitutional limits on a state’s recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665 (1983). Recoupment statutes must be tailored to “impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.” Fuller v. Oregon, 417 U.S. 40, 54 (1974).

…

¶10      Helsper argues the minimum safeguard should be a finding of ability to pay prior to all commitments for unpaid fee obligations.…

¶11      We agree.  Fuller requires that “those upon whom a conditional obligation is imposed [not be] subjected to collection procedures until their indigency has ended and no ‘manifest hardship’ will result” from payment.Fuller, 417 U.S. at 46. A defendant who lacks a hearing, notice of the right to request one, or representation is likely to be committed regardless of ability to pay the attorney fee obligation.

As a result, these requirements are read into § 973.07:

¶16      We fill in this legislative silence with the minimum requirements inFuller. We hold that, at least where no prior determination of ability to pay exists, the court must consider whether the defendant had the ability to pay the fine when it exercises its discretion under Wis. Stat. § 973.07. The court’s consideration of this issue must be based on a finding of ability to pay made at a hearing where the defendant is given notice and an opportunity to be heard. ^[4] Here, no such finding was made at sentencing, at the time Helsper’s fees were set, or at the time the commitment order was issued.

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 ^[4]   Our holding is based on the constitutional requirements for attorney fee recoupment statutes under Fuller v. Oregon, 417 U.S. 40 (1974), and only the portion of the court’s order authorizing commitment for Helsper’s attorney fee obligation is before us. We offer no opinion on the proper considerations for the court in a Wis. Stat. § 973.07 commitment action based on obligations other than unpaid attorney fees.

State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson

Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”

Holding:

¶9        Owens complains that even though the trial court set forth an explanation for its sentence, it failed to separately explain its rationale for denying his ERP participation request. However, Wis. Stat. § 973.01(3g) explicitly states an ERP eligibility decision is part of the court’s exercise of sentencing discretion. ^[3] Thus, while the trial court must state whether the defendant is eligible or ineligible for the program, we do not read the statute to require completely separate findings on the reasons for the eligibility decision, so long as the overall sentencing rationale also justifies the ERP determination.

¶10      Moreover, the sentencing transcript here reveals the court more than adequately explained its decision. When Owens asserted that he had a drug problem and needed assistance, the court observed that treatment had been made available to him for years and yet he never availed himself of those opportunities. Accordingly, to the extent Owens complains the court failed to assess the likelihood of his success in the ERP, it is evident the court inferred, from his past apathy and failure to seek help, that Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program.

¶11      The court then determined that, given Owens’s criminal record and the particularly aggravated nature of the robbery, ^[4] protection of the community was the paramount sentencing objective, although punishment was also important. … In other words, the court determined the ERP to be inconsistent with the protection and punishment objectives and would not provide sufficiently “close rehabilitative control.” This is not an erroneous exercise of discretion.

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 ^[3]  Because the statute specifies that the eligibility determination is part of sentencing discretion, and because sentencing factors are well-established, we decline Owens’s invitation to “come up with factors judges might use” for ERP eligibility decisions.

The sentencing court initially indicated that “Owens was ‘not eligible by age’ for either” ERP or Challenge Incarceration (CIP), ¶3. The latter program is age-restricted, ERP isn’t. Odds are, the judge simply got this eligibility requirement wrong. It happens, and there’s nothing unusual or worthy of condemnation about that. In theory, that’s the purpose of postconviction motions, to let the judge correct errors brought to his or her attention. But in practice, and this is a decent illustration, the judge instead “explains,” or “clarifies” that indeed there was no error because after all something else was meant other than the plain implication of the words actually spoken.

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.

Holding:

¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis. Stat. ch. 940 to participate in the earned release program. While one purpose of the earned release program is undoubtedly to encourage inmates to participate in treatment for substance abuse, it is also significant that the result of successful participation is a reduction in the time a convicted person must serve in confinement. ^[6] In effect, participation in the program is an opportunity to have a lesser punishment than that originally imposed. Excluding persons who have committed more serious crimes from this opportunity for reduced confinement is rationally related to the legitimate purpose of punishing more serious crimes more severely. A classification that treats persons differently, for purposes of participation in this program, based on whether their conduct has caused death or great bodily harm, is rationally related to the legitimate purpose of punishing more severely those persons who commit more serious crimes. It is rational to treat conduct that causes death or great bodily harm differently from conduct that does not have that result and to punish the former more severely.

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 ^[6] Lynch does not contend that, if he cannot participate in the earned release program, he is denied all treatment for substance abuse.

Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21.

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:

¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis. Stat. § 973.195. …

¶84 We conclude that the judicial power is compromised when the district attorney is given the unilateral power to end a circuit court’s consideration of an inmate’s petition for sentence adjustment. A district attorney’s exercise of a core judicial function is barred by the separation of powers doctrine. ^[17]

¶85 Wisconsin Stat. § 973.195(1r)(c) is unconstitutional if read to grant a district attorney veto power over a petition for sentence adjustment. A district attorney’s veto power invades the exclusive core constitutional power of the judiciary to impose a criminal penalty. It empowers an executive branch officer to direct a court decision on the merits of a case, thereby violating the doctrine of separation of powers under the state constitution. ^[18]

¶86 Even if we were to conclude that the statute does not invade the exclusive core constitutional powers of the judiciary, the elimination of a circuit court’s power to decide an inmate’s petition without the approval of the district attorney is an impermissible burden and substantial interference with the judicial branch’s authority. ^[19] The statute interferes with the impartial administration of justice by delegating judicial power to one of the parties in the litigation.

…

¶105 Because deciding the merits of a case is the essence of a court’s function, and because the statute delegates to a district attorney the power to mandate the denial of a petition in each case, we conclude that the legislation in question is an unconstitutional violation of the doctrine of separation of powers.

The holdings are contained in two separate, 4-vote concurrence/dissents; see ¶82. The misleadingly referred-to “lead opinion” – a mere 80 ¶¶ – is written as if it were the majority, replete with “we hold” and “we conclude” but it garners only 3 votes. In reality, it is not the lead opinion, or the plurality, or anything other than, quite simply, the dissent. Indeed, the “lead opinion’s” recognition of its dissent-status is coy, not to say grudging, ¶6 fn. 2. We here at Case Summaries strive to be above the fray, but would be remiss if we failed to draw attention to the majority’s dismissive criticism of the dissent, ¶85 n. 18: “The lead opinion goes to great length, making numerous arguments to uphold the statute. I do not undertake an analytical critique of each argument, although I could. The lead opinion builds its case on weak underpinnings, supported by quotations taken out of context. Very little research by a reader will quickly reveal the weaknesses that permeate the lead opinion.” Ouch! And we won’t even mention ¶94 fn. 34, which instructs the “lead opinion” on the need to actually consult a dictionary when tossing around definitions.

If all this indicated was trouble in paradise, then it would be mere distraction. But it must be said that the majority’s spare, elegant analysis strikes just the right tone, making the necessary point efficiently and clearly: although sentencing may be a shared power (that is, shared among governmental branches), a statute simply may not compel a court to decide a case in a particular way; yet, the veto provision does just that, by allowing the prosecution to trench on judicial exercise of discretion. Indeed, the court says that it’s more than separation of powers at stake, it’s “the judiciary’s duty to administer justice impartially,” which would be impaired by unilateral, prosecutorial authority to decide whether a sentence may be adjusted, ¶106. In a sense, this is akin to the circuit court’s reservation of authority to determine dismissal of a pending prosecution at prosecutorial request, e.g.,State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’”). The prosecution can no more unilaterally determine the outcome of sentence adjustment then it can unilaterally terminate a pending case. Like all bureaucracies, the judiciary jealously guards its powers; and because it derives much of its power from the respect accorded its independence, it is likely to be especially vigilant against such encroachments. At least on this particular occasion it is, by a razor-thin one-vote margin.

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal.

¶16      Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford ^[6] plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18. ^[7] Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests.

As the court suggests (fn. 7), plea-bargained waiver of the right to appeal is a relative commonplace in federal practice. One thing sticks out, though: there is no federal constitutional right to appeal—put aside the idea that where the state does grant such a right it can’t as a matter of due process or equal protection impose arbitrary barriers—but there is a state constitutional right. State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”). Does this distinction matter? Hard to say; the court of appeals doesn’t mention it. There are, to be sure, recognized limits on enforceability, but they exist at the margins, see block quote in fn. 7, and the well-developed body of caselaw on bargained appeal-waiver will have to be reviewed for particular examples.

The net result of this case seems clear, though: the mere possibility of actual innocence is not a basis to obviate waiver. It’s not a far stretch from that idea to the idea that even a compelling showing of actual innocence isn’t enough, but that suggests another wrinkle. Plea agreements that are clearly against public policy are “illegal” and “cannot be respected by the courts,” Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976)); distinguished in and further explicated by State v. McQuay, 154 Wis.2d 116, 124, 452 N.W.2d 377 (1990). Is it against public policy to preclude a defendant from establishing actual innocence through DNA testing; and, if so, does that make a no-appeal plea bargain unenforceable? You’ll have to decide for yourself.

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).

Holding:

¶9        Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before, did not have keys to the facility housing them, and did not have “imminent or unfettered access” to them at the time the crime was committed. We are not persuaded. Kueny owned the weapons, he paid the storage fees and, although he did not possess a key, upon request Allwright would have had to surrender to him either a key or the firearms. The firearms were in Kueny’s possession because they were in an area over which he had control and he intended to exercise control over them. See State v. Allbaugh, 148 Wis. 2d 807, 814, 436 N.W.2d 898 (Ct. App. 1989) (approving concept of “possession” as stated in Wis JI—Criminal 920, that “[a]n item is … in a person’s possession if it is in an area over which the person has control and the person intends to exercise control over the item”). Whether or not tagged “constructive possession,” ^[3] the essential point is that Kueny had ultimate control over the stored firearms. See United States v. Manzella, 791 F.2d 1263, 1266 (7th Cir. 1986). “He need not have them literally in his hands or on premises that he occupies but he must have the right … to possess them, [just] as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.” Id. Kueny’s assertion that he did not have contact with the weapons for several years does not establish lack of possession, especially in view of his testimony that he was allowing the firearms to appreciate in value for his intended later sale of them.

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^[3] The Wisconsin Criminal Jury Instructions Committee has cautioned against use of the term “constructive possession” because it implies something other than “actual” or “real” possession. State v. Allbaugh, 148 Wis.  2d 807, 813-14, 436 N.W.2d 898 (Ct. App. 1989); Wis JI—Criminal 920, Comment 2.