On Point

State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky

Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.

Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentence, if seeking relief from conviction or sentence). ¶¶ 5-6. Nonetheless, a proper result will be sustained even if based on the wrong reason. ¶ 7. Transfer of venue is discretionary under § 801.52, ‘in the interest of justice or for the convenience of the parties or witnesses.’ In transferring venue, the trial court stressed that Milwaukee has ‘all of the documents, regarding the judgment that’s being attacked’; this is enough to satisfy the § 801.52 standard for exercising discretion. ¶¶ 9-10.

Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002) 
For Cage: Calvin R. Malone

Issue/Holding: “When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend the certificate, which is within our power because even an ‘unfounded’ certificate of appealability confers jurisdiction on us.”

Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002)

Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn’t enough, and it is incumbent on counsel to bring this defect to the appellate court’s attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned: “Future petitioners and their lawyers should undertake to show that a substantial constitutional issue exists, however, lest the court of appeals conclude that the procedural error is harmless and a remand pointless.”

State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The evidence was sufficient to establish the intent element, and therefore to support conviction, for contributing to delinquency of a minor, §  948.40(1): “The jury reasonably could infer from the evidence that Williams was aware that his participation in illegal gambling with James D. was ‘practically certain’ to cause James D. to violate the law.” ¶80.

State v. Jacob E. Herman, 2002 WI App 28, PFR filed 1/16/02
For Herman: Jack E. Schairer, Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶1        Jacob Herman appeals from the sentencing portion of a judgment convicting him of possession of THC contrary to WIS. STAT. § 961.41(3g)(e).  The circuit court suspended Herman’s operating privilege for six months after concluding that it had no discretion to impose less than the minimum suspension mandated by WIS. STAT. § 961.50, which applies to those who are convicted of violating WIS. STAT. ch. 961.  This appeal presents a single issue:  whether § 961.50 prescribes a “minimum sentence” as that term is used in WIS. STAT. § 961.438, which provides that minimum sentences for violations of ch. 961 are presumptive, rather than mandatory.  We conclude that a suspension imposed pursuant to § 961.50 is not a “minimum sentence” as that term is used in § 961.438 and that it is a mandatory penalty.  Accordingly, we affirm the judgment.

…

¶12      However, we conclude that WIS. STAT. § 961.50 is not, on its face, ambiguous.  First, § 961.50(1) provides that the penalty imposed is an additional penalty, above and beyond other penalties in WIS. STAT. ch. 961.  The statute states, “the court shall, in addition to any other penalties that may apply to the crime, suspend the person’s operating privilege ….” (emphasis added).  SeeKarow v. Milwaukee County Civil Serv. Comm’n, 82 Wis. 2d 565, 570, 263 N.W.2d 214 (1978) (use of the word “shall” creates a presumption that the statute is mandatory).  Moreover, there is no explicit attempt to incorporate WIS. STAT. § 961.438 in the statute, which arguably shows a lack of intent to apply § 961.438 to § 961.50.

¶13      Also, WIS. STAT. § 961.50 does not anticipate that an offender will receive a suspension of less than six months, or no suspension at all.  The statute provides that the circuit court “shall immediately take possession of any suspended license.”  The statute also lays out a specific timeline for seeking an occupational license.  This specificity does not contemplate that a person’s operating privilege may have been suspended for less than six months, or not at all.

§ 961.438 says that “minimum” sentences are merely “presumptive,” i.e., not mandatory. This limitation doesn’t control § 961.50, because, even though “sentence” is ambiguous in the sense that it might be broad enough to cover all forms of punishment including loss of driving privileges, § 961.50 is clear on its face. That provision expressly requires loss of driving “in addition to any other penalties that may apply.” In addition, this provision ties in with the federal scheme which made highway funds contingent on loss of driving for drug offenses.

State v. Anthony J. Leitner, 2001 WI App 172, affirmed on other grounds, 2002 WI 77
For Leitner: Jim Scott

Issue: Whether the trial court properly denied a presentence motion to withdraw guilty plea.

Holding:

¶27. When a defendant shows a fair and just reason, the trial court should permit the plea withdrawal unless there is substantial prejudice to the prosecution. Kivioja, 225 Wis. 2d at 283-84; Garcia, 192 Wis. 2d at 861. In this case, the State has not claimed substantial prejudice and so we address only whether Leitner demonstrated a fair and just reason.¶28. The trial court properly denied the motion because it was not supported by a preponderance of evidence showing that Leitner actually had an alibi witness which he had previously chosen to conceal. At the hearing on his motion to withdraw his plea, Leitner did not produce his fiancée and did not offer his own testimony. He provided no details about what his fiancée might say if she testified. He did not even specify when she had miscarried. By neither specifying nor offering evidence of these details, Leitner failed to meet his burden of proof.

¶29. The trial court also found that Leitner’s proffered reason for plea withdrawal lacked credibility. We defer to this finding and conclude it is well supported by the record.

¶30. The trial court could have reasonably concluded that it is not credible that Leitner failed to discuss his fiancée’s potential testimony with his attorney if his fiancée could plausibly testify that she was with Leitner during the time frame of the crime. Even if Leitner had been concerned about his fiancée’s health due to her pregnancy, that does not explain why he did not even broach the issue with his attorney. Moreover, absent some information showing that Leitner’s fiancée was particularly vulnerable during her pregnancy, there is no reason to think that testifying would endanger her health.

¶31. In this context, the trial court was justified in finding that there was a very different reason for Leitner’s belated request for plea withdrawal: the highly negative presentence report.”

State v. Corey J. Hampton, 2002 WI App 293, affirmed, 2004 WI 107
For Hampton: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue/Holding: The pleading requirements for a hearing imposed by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) aren’t applicable to a motion for plea-withdrawal based on defective colloquy:

¶20. Hampton responds that Bentley does not apply because the defendant in Bentley sought plea withdrawal based on ineffective assistance of counsel and, therefore, bore the burden of showing both ineffective assistance and the need for an evidentiary hearing. See id. at 311-12. In contrast, under Bangert, once a defendant makes a prima facie showing, the burden shifts to the State. See Bangert, 131 Wis. 2d at 274. Hampton contends that once he made a prima facie showing of a deficient colloquy, he was entitled to an evidentiary hearing on the issue of his actual understanding, regardless whether he made any additional factual allegations and regardless whether there was evidence in the existing record tending to show that he did understand.

¶21. We agree with Hampton’s description of the differing burdens and conclude that the burden-shifting scheme imposed by Bangert is inconsistent with the State’s proposal that we apply Bentley. In effect, the State argues that Hampton not only had the burden of presenting a prima facie case, but also had the burden of making non-conclusory assertions about the evidence he would present at a hearing and why, if believed, his evidence would entitle him to relief. Cf. Bentley, 201 Wis. 2d at 313-18; State v. Washington, 176 Wis. 2d 205, 216, 500 N.W.2d 331 (Ct. App. 1993) (“[T]he motion must contain at least enough facts to lead the trial court to conclude that an evidentiary hearing is necessary.”). Regardless whether the imposition of this additional burden makes sense in some Bangert situations, it is for the supreme court, not this court, to impose a different burden-shifting framework than the one set forth in Bangert.

The supreme court affirmed, 2004 WI 107, ¶¶51-65, but the court of appeals’ holding quoted immediately above is a more efficient statement of the operative principle.