On Point

State v. Henry T. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12
For Skibinski: Karma S. Rodgers

Issue: Whether a trial court can, after findings of guilt on second and third offense OWI, apply the increased penalties of OWI-3rd to both offenses at sentencing.

Holding: For several reasons, the sentence for OWI-2nd was limited to the applicable penalty for that discrete offense, even though the defendant was simultaneously being sentenced for OWI-3rd: a prior conviction is an element of OWI, so that when defendant was found guilty of OWI 2nd, he only had one prior OWI; an OWI graduated penalty requires a conviction, which in turn requires a sentence; otherwise, the penalty scheme would be subject to challenge on void-for-vagueness grounds; otherwise, the legislative directive — a graduated scheme of deterrence built into increasing penalties — would be vitiated, ¶¶8-13. Because the trial court imposed sentence thinking that the increased penalty for OWI-3rd applied to both offenses, resentencing is required in both cases, ¶14.

State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker

Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).

Holding:

¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period. Here Wis. Stat. § 346.65(2)(e) requires that a defendant be imprisoned for at least six months for fifth or greater offense PAC. Eckola was convicted of sixth offense PAC. Therefore, the court was required to confine Eckola for at least six months as a condition of probation.

¶16. When the circuit court has made an error that underlies the exercise of its discretion, we may not exercise the court’s discretion for it. Rather, we are to remand to permit the court to exercise its discretion. Wisconsin Ass’n of Food Dealers v. City of Madison, 97 Wis. 2d 426, 434-35, 293 N.W.2d 540 (1980). We therefore reverse and remand for resentencing.

State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal

Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain.

Holding:

¶24 … (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he or she pleads guilty or no contest.

¶25. In addition, we can see no purpose served by interpreting the statute to prevent a defendant from agreeing to add repeater allegations to an information as part of a plea agreement. Since a defendant need not agree to that amendment, presumably a defendant will agree only when he or she perceives it is in his or her interest to do so. For example, in this case, postconviction counsel acknowledged to the trial court that the amendment to the information benefited Peterson. The requirement that guilty and no contest pleas be knowing, voluntary, and intelligent ensures that defendants will not be coerced into agreeing to the addition of repeater allegations that the State could not add unilaterally.

…

¶27. For the above reasons, we conclude that the legislature did not intend in Wis. Stat. § 973.12(1) to prohibit defendants from agreeing, after arraignment and entry of a not guilty plea and as part of a plea agreement, to amend charging documents to add repeater. Accordingly, the repeater penalty portions of Peterson’s sentences on Count 1 and 2 are not void and the trial court did not err in denying Peterson’s motion to vacate those portions of his sentences.

State v. Debra Noble, 2001 WI App 145, 629 N.W.2d 317, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman

Issue: Whether a state investigator’s destruction of interview violated the defendant’s due process right to exculpatory evidence.

Holding:

¶17. A defendant’s right of pretrial access to exculpatory evidence needed to prepare a defense is protected by the Due Process Clause of the Fourteenth Amendment. State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994). The defendant’s due process rights are violated by the destruction of evidence if: (1) the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; or (2) if the evidence was potentially exculpatory and was destroyed in bad faith. Id. at 885-86.

¶18. Noble has not argued that Matthews destroyed his notes in bad faith, so she must demonstrate that the evidence they contained is apparently exculpatory and of such a nature that she could not obtain it by other reasonably available means. However, she offers no reasoning to support her claim that Matthews’ original notes were exculpatory other than the general assertion that the notes would have shown that she did not say what Matthews reported. … Therefore, we conclude that Noble has not demonstrated that the notes contained any apparently exculpatory evidence.

State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).

Holding: An amendment to the charge must satisfy two tests: it must not be “wholly unrelated” to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom’s statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.

State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163

Issue: Whether the “presumptive mandatory release date” under § 302.11(1g) creates a liberty interest in parole protected by due process.

Holding: Prisoners sentenced for a “serious felony” between April 21, 1994, and December 31, 1999, are given a “presumptive” MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does. The “presumptive” MR regime is a form of discretionary parole, because the inmate is not entitled to release; instead, the parole commission has broad discretion to deny parole “when the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment.” ¶¶9-10. Moreover, by providing a hearing at which Gendrich could present his case for parole, and by providing written reasons for denial of parole, the commission afforded all the process he was due even had his interest in release been protectible. ¶11. Finally, the evidence supported the decision to deny parole, in

that Gendrich’s release would pose a substantial risk to the public because he remains an untreated sex offender. Gendrich has completed the “Denier’s Program” but has not yet completed Sex Offender Treatment. Early during his incarceration, he refused to participate in the treatment program because he was still pursuing an appeal of his conviction. Recently, he has been on the institution’s waiting list for Sex Offender Treatment. No matter the reason for his not participating in treatment, a reasonable person could conclude that as an untreated sex offender, Gendrich poses a substantial risk to the public.

¶13.

This decision has the effect of denying parole based on failure to obtain or submit to SOT. Though the implication isn’t discussed in the opinion, this situation could create “compulsion” sufficient to trigger 5th amendment protection. That is, SOT is generally conditioned on full disclosure of assault history, which the inmate is now compelled to reveal on pain of forgoing release on parole. Moreover, even on its face, the decision at least arguably punishes Gendrich for asserting his rights: he refused to talk during pendency of his appeal of his conviction — something he was plainly entitled to do, see State ex rel. Gary Tate v. Schwarz, 2001 WI 127 ¶¶18-19, affirmed in pertinent part 2002 WI 127 — which delayed his entry into SOT and thereby made him ineligible for parole. ¶11 n. 9. Gendrich, a pro se litigant, never raised this issue. For discussion on interplay between sexual offender treatment programs and fifth amendment go here.

State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.

Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination; and, “there are many safeguards against arbitrary confinement” (such as, various options for petitioning for release or discharge). ¶¶7-9.

The court relies heavily on the automatic-commitment procedure for NGI defendants, § 971.17(1) (1981-82), upheld by State v. Field, 118 Wis. 2d 269, 279-82, 347 N.W.2d 365 (1984). ¶8. But this merely begs the question of whether NGI and SVP procedure are really comparable. As the Supreme Court has indicated, “insanity acquittees constitute a special class that should be treated differently from other candidates for treatment,” Jones v. United States, 463 U.S. 354, 370 (1983).Field, for that matter, is premised in significant part on the idea that an insanity acquittee has necessarily committed a criminal act, itself “indicative of dangerousness.” 118 Wis. 2d at 279. Same can’t be said for an SVP subject, whose commitment is premised on a “predisposition” not actual commission of a crime. Then, too, Field stresses that automatic commitment ensures “a thorough and accurate evaluation,” 118 Wis. 2d at 281, something that will necessarily precede an SVP petition. Finally, an NGI acquittee is eligible for immediate conditional release, making the court’s reliance on the case somewhat odd. Neither side, incidentally, even cited Field in the briefs.