by admin
on February 12, 2001
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.)
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by admin
on February 8, 2001
State v. Garren G. Gribble, 2001 WI App 227, PFR filed
For Gribble: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a witness should have been permitted to demonstrate with a doll the force used to cause injuries to the child victim.
Holding: The fact that the experts couldn’t agree on the exact cause of the injuries goes to weight, not admissibility, of the demonstration. ¶56. The witness’s credentials and the foundation he laid supported probative value on the force used to cause the injuries, even if the witness couldn’t accurately replicate that force. ¶57. The fact that the defense didn’t contest the amount of force used to cause the injuries didn’t bind the state from proving, through this demonstration, the element of utter disregard for human life. ¶58. Probative value wasn’t outweighed by unfair prejudice. ¶59
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by admin
on February 4, 2001
State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.
Holding:
¶59 There is another reason Koller’s second multiplicity challenge fails. This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse), on the other. Koller asserts that evidence showing a switch from mouth-to-vagina contact to penis-to-vagina intercourse, without more, does not show a “new volitional departure.” We disagree. When a perpetrator moves from having mouth-to-vagina contact to having penis-to-vagina intercourse, he necessarily engages in a new volitional act warranting a separate charge, conviction, and punishment.
State v. Hirsch, 140 Wis. 2d 468, 475, 410 N.W.2d 638 (Ct. App. 1987), distinguished, ¶60.
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by admin
on February 2, 2001
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 626 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: “¶8 … ‘Does Wis. Stat. § 961.45 bar prosecution for the state crime of possession of cocaine with intent to deliver, where a defendant previously has been convicted, based on the same conduct, for the federal crime of conspiracy to possess cocaine with intent to distribute? Stated differently, is the term “same act” under § 961.45 defined by the elements of the state and federal crimes, or by the conduct for which a defendant is convicted?’”
Holding: “Act” refers to factual conduct underlying, as opposed to legal elements of, the offense and therefore “§ 961.45 bars a prosecution where the defendant has previously been acquitted or convicted for the same conduct under federal laws or the laws of another state[.]” ¶43.
The statute significantly limits the dual sovereignty doctrine, which otherwise allows Wisconsin prosecution for an offense even though the underlying conduct has been prosecuted to conclusion elsewhere. The bar applies only to ch. 961 drug offenses, but that’s plenty, given federal encroachment. The statute reads as follows: “Bar to prosecution. If a violation of this chapter is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.” Note, though, that timing is everything: the bar applies only before completion of the Wisconsin prosecution (which means attachment of jeopardy, such as entry of guilty plea). See generally, State v. Petty, 201 Wis. 2d 337, 548 N.W.2d 817 (1996). Note, too, that the limitation is purely statutory. See, e.g., ¶10 (“Section 961.45 thus operates as a limitation on the State’s power to prosecute where no constitutional limit exists. Our inquiry today addresses the scope of the statutory protection against successive prosecutions.”).
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by admin
on January 28, 2001
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.
Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge, skill, experience, training, or education. See Wis. Stat. § 907.02. Further, the determination whether an expert is qualified to testify is within the circuit court’s discretion,” ¶27.
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by admin
on January 28, 2001
State v. Keith Alan VanBronkhorst, 2001 WI App 190
For VanBronkhorst: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether revocation of supervised release from a ch. 980 commitment was properly based on an uncharged rule violation.
Holding:
¶9 … “(P)rocedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980. “…¶15. Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare. In re Gault, 387 U.S. 1, 33-34 (1967). There is no principle of due process more important or firmly established than notice of the specific charge so that the accused can prepare a defense. Cole v. Arkansas , 333 U.S.196, 201 (1948). The purpose of the petition for revocation is to inform the person on supervised release of the alleged violations so he or she can prepare a defense.
¶16. Here, VanBronkhorst was charged with violating Rules 1, 17, 36, and 37. Further, the petition specified only one incident: contact with a seven-year-old. However, the circuit court based the revocation upon a Rule 15(i) violation involving an adult and another child and upon the grounds of public safety. VanBronkhorst was not given notice of those specific charges or a factual basis. When the State asked the court to find a Rule 15(i) violation, the hearing had concluded. VanBronkhorst’s chance to present, let alone prepare a defense, was lost. “…
¶25. The only violation that was properly noticed and proved was a Rule 37 violation. Rule 37 required VanBronkhorst to remain mute and leave any situation immediately when a juvenile initiates a conversation with him. The circuit court found that there was a minimal violation of that rule. However, the court did not determine whether that violation alone merited revocation.
¶26. Because the circuit court did not rule whether the violation of Rule 37 warranted revocation of VanBronkhorst’s supervised release, we remand with directions to determine whether VanBronkhorst’s violation of Rule 37 was itself sufficient to revoke supervised release.
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by admin
on January 27, 2001
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the commitment subject has a right to present an independent medical report at a petition for discharge probable cause hearing, § 980.09(2)(a).
Holding: Although a Ch. 980 patient does have the right submit an independent medical report to the court, ¶¶6-13, Wis Stat.. § 980.07(1) requires that the expert be requested or retained at the time of reexamination. ¶15.
The issue arises in the context of an ineffective assistance challenge to counsel’s failure to present an independent medical report at the probable cause hearing. The court seems to hold that, given the requirement that the patient must assert the right to an expert at the time of the reexamination, coupled with his failure to do so, counsel’s belief that he was prohibited from presenting and evidence was reasonable. To the extent that the court thereby binds counsel to the patient’s failure to assert a right, the holding is extremely problematic: the patient certainly has the right to counsel at this stage, and it is hard to believe that an uncounsleed waiver of the right to present evidence without an accompanying waiver of the right to counsel can be countenanced.
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by admin
on January 24, 2001
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea; and, his claim of ineffective assistance of appellate counsel for failing to pursue that issue is thereby rejected, ¶4.
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