On Point

State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence, § 805.13, ¶11; but:

¶16. There is absolutely no new information contained in the periodic re-examination report. The report is simply Dal Cerro’s assessment of pre-existing information, the same information utilized by Lytton [expert at § 980.08 proceeding]. Merely recycling and reformulating existing information into a new format does not generate new evidence. Newly discovered evidence does not include a ‘new appreciation of the importance of evidence previously known but not used.’ State v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted).¶17. Our holding here is supported by a recent case, State v. Slagoski, 2001 WI App 112, where we held that the existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. Id. at ¶11. As we stated in Slagoski, a contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. Id. The State has failed to differentiate the psychiatric evidence available at the time of Lytton’s report from Dal Cerro’s report. Dal Cerro’s report was nothing more than the newly opined importance of existing evidence.

The court goes on to also find a lack of diligence stressing WRC’s refusal to cooperate with the expert on the release petition:

¶21. The State and WRC staff seem to forget that at a hearing for supervised release, the burden of proof lies with them, not Williams. Williams does not have to prove that he is cured; the State must prove that Williams continues to be a sexually violent person and that it is substantially probable that he will engage in acts of sexual violence if he is not continued in institutional care. Wis. Stat. § 980.08(4). The refusal of WRC to cooperate with the independent evaluation by Lytton perhaps frustrated the State’s objectives. In any event, if WRC wanted the trial court to be aware of Dal Cerro’s opinion, WRC staff should have cooperated with Lytton. Again, the test to determine if evidence is newly discovered is not what counsel knows or is aware of, but what the client, here WRC, is or should be aware of. Kocinski, 147 Wis. 2d at 744. At the time of Lytton’s evaluation, WRC had in its possession all of the information contained in Dal Cerro’s report. It cannot slide this information in the back door after it refused to contribute to Lytton’s § 980.08 evaluation. Wisconsin Stat. § 805.15(3) cannot be used as a cure for inadequate preparation. Kocinski, 147 Wis. 2d at 744.)

State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.

Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29. The error, however, was harmless: The witness was allowed to testify to all but the ultimate opinion, and another witness was allowed to give an ultimate opinion in Sprosty’s favor, ¶30.

The social worker’s qualifications are mentioned only in passing, namely that “she provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release,” ¶11. The harmless error analysis is wrong on its face: “because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court’s decision, we conclude the error was harmless[.],” ¶30. This exactly inverts the burden, which is, instead, that the state show beyond reasonable doubt that the error didn’t contribute to the result.

Barbara Melone v. State, 2001 WI App 13, 240 Wis. 2d 451, 623 N.W.2d 179For Melone: Theodore B. Kmiec III

Issue: Whether the trial court properly exercised discretion in declining to set aside an order forfeiting bail, where the court indicated that it “always refuses to return [forfeited] bail money no matter what the circumstance,” ¶1.

Holding: “[T]he statute on bail forfeitures, WIS. STAT. § 969.13(2) (1997-98), requires the court to exercise discretion and consider factors for and against enforcing the forfeiture on a case-by-case basis. Applying a blanket policy to all cases is an erroneous exercise of discretion because it is tantamount to a refusal to exercise discretion. We remand this case to the trial court to weigh the factors for and against returning some or all of the $20,000 to Barbara Melone, which she posted for bail on her son’s behalf,” ¶1. (See also ¶¶8-12 for general discussion of relevant factors, which court cautions “cannot be neatly parlayed into an all-inclusive, exhaustive list.”)

State v. Gabriel L. Ortiz, 2001 WI App 215
For Ortiz: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: “(W)here there is conflict between a trial court’s oral pronouncement and a written judgment, the oral pronouncement controls.” ¶27, citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987). This rule is applicable even though “the trial court’s oral pronouncement came after, rather than before, the written judgment. Nonetheless, the pronouncement reflects the authority under which the court issued the restitution order. We conclude that we must give that pronouncement its intended effect.” Id., n. 7.

Interesting variation on this principle: sentencing court failure to articulate condition of release “create(s) a material conflict between the written and oral sentencing orders.” U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003) (stressing, as well, that rationale for oral-pronouncement-controls rule stems from defendant’s right to presence at sentencing – note that in Wisconsin the defendant has an absolute right to be present at sentencing, § 971.04(1)(g); State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1996)); U.S. v. Bigelow, 5th Cir No. 05-20539, 8/23/06 (same effect); People v. Zackery, Cal App No. C051431, 12/27/06:

“With certain exceptions not applicable here [citations] judgment and sentence in felony cases may be imposed only in the presence of the accused.” (In re Levi (1952) 39 Cal.2d 41, 45.) …The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. …

And see also U.S. v. Rosario, 2nd Cir. No. 03-1686-cr, 10/8/04 (“In some circumstances where a written judgment entered in the defendant’s absence differed from an oral sentence, we have afforded the sentencing judge an opportunity to reimpose the provisions of the written sentence in the defendant’s presence.”).

State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:

¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis. Stat. Chapter 980 (1999-2000), is constitutionally entitled to assistance of counsel in bringing his or her first appeal as of right from a denial of his or her petition for supervised release. Because due process and equal protection concerns are implicated, we rule that an indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release.

¶2. The second issue is whether there is ineffective assistance of counsel where appellate counsel filed an appeal from a petition for supervised release one day late. On the unique facts of this case, we find that there was ineffective assistance of counsel where the notice of appeal for the denial of the petition for supervised release was filed one day late in circuit court. Moreover, we find that under the United States Supreme Court’s decisions in Douglas v. California, 372 U.S. 353 (1963), Anders v. California, 386 U.S. 738 (1967), and their progeny, the court of appeals cannot conduct an independent review for error where the individual lacks requested representation, whether that representation encompasses briefing on the merits or an Anders brief. Accordingly, we remand Seibert’s cause to the court of appeals with instructions to appoint new appellate counsel who may submit either a brief on the merits or an Anders brief.

As the quote suggests, this is a straight-forward application of Anders to 980 appeals. Filing a late NOA is necessarily both deficient performance and presumptively prejudicial. (The record unequivocally establishes that Seibert instructed his attorney to file an appeal, so an evidentiary hearing on that question wasn’t necessary.) That 980 is civil doesn’t preclude assistance-of-counsel analysis, because equal protection and due process grant an indigent defendant the same procedural rights as a solvent one. ¶¶10-12. Of course, a 980 respondent isn’t a criminal defendant, and to draw parallels would highlight the incarcerative purpose of 980 litigation. Instead, the court merely alludes to § 980.05. (“An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant. However, such a person has the same constitutional rights as a criminal defendant at trial.” ¶12, as amended on reconsideration.) Does this pronouncement conflict with a recent court of appeals’ observation that “(t)his section does not grant all constitutional rights available to a criminal defendant to an individual in a Wis. Stat. ch. 980 proceeding”?State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, ¶26.) Also worth noting: The court assumes that a no-merit report may be filed in a 980 appeal. (Though no real explanation is provided, the conclusion is undoubtedly correct despite at least one holding to the contrary, In re Matter of Leon G., ¶7 (Ariz. 2001), reaffirmed on remand from Supreme Court, In Matter of Leon G., ¶1 n. 1.) No-merit procedure applies only to direct appeals, but that includes post-judgment activity, such as this petition for supervised release. However, the civil (45-90 day) deadline applies, whether or not the appeal is no-merit. Seibert, ¶20 n.8 (“as the law currently stands, § 808.04 governs Chapter 980 appeals, and counsel for an individual committed under chapter 980 who wishes to appeal as a matter of right may either file a brief on the merits or an Anders brief.”).

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding: “This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel.” ¶24.

State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913

Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.

Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing, but made an error (mathematical in nature) in applying them. As a result, the trial court’s finding that defendant’s income exceeded federal poverty guidelines is clearly erroneous — in fact, his income is well below guidelines — and the matter is remanded for a hearing at which the guidelines will be properly applied, ¶¶8-14:

¶14 We remand so that the trial court may (1) hold a hearing at which it can inquire further into Nieves-Gonzalez’s financial and martial status if necessary and (2) reapply the federal poverty guidelines properly. We note that, even including spousal income, Nieves-Gonzalez’s household income is still well below the federal guidelines.⁴ Unless, upon further inquiry by the trial court, evidence comes to light showing that Nieves-Gonzalez has additional resources available, it would be difficult to conclude that he is not entitled to court-appointed counsel.