On Point

State v. Anthony D.B., 2000 WI 94, ¶11, 237 Wis. 2d 1, 614 N.W.2d 435
For Anthony D.B.: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether a circuit court has authority, on a Ch. 980 commitment, to order involuntary medication.

Holding: “Because those individuals committed under ch. 980 are defined as ‘patients’ in Wis. Stat. § 51.61(1), we hold that the statutory provision in § 51.61(1)(g), authorizing a court to order medication regardless of the patient’s consent, along with the relevant provisions of Wis. Stat. § 51.20, apply.”

The court again stresses treatment as the underlying purpose of Ch. 980. ¶12. Individuals committed under 980 are entitled to § 51.61 patients’ rights, including the right to a hearing on competency to refuse medication. ¶¶13-14. “Section 51.61 provides patients with the right to make informed decisions regarding medication, except in those circumstances where, following a constitutionally sufficient procedure, the patient is determined to be not competent to refuse medication. Under these circumstances, § 51.61 (1)(g) authorizes orders for involuntary administration of medication for individuals committed under ch. 980.” ¶15. Patients have a due process right to regular review of involuntary medication. ¶¶27. Though the statutes don’t explicitly provide for such review in 980 cases, the court carves out review as part of the periodic review of the commitment under § 980.07. ¶31. Three points are essential to review. 1) Compliance with § 51.20(5) (right to counsel; open hearing with option to request closed hearing; rights to silence and present and cross-examine witnesses; but no jury trial); 2) right to petition the court for review of the medication order; 3) expiration of the medication order unless it receives periodic review. ¶¶32-34.

State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11

For Williams: Steven P. Weiss, SPD, Madison Appellate

Issue: Whether the trial court improperly refused to adjourn trial so that the defense could secure presence of a witness.

Holding: Because the absent witness’s proposed testimony was vague as to details in support of alibi, the trial court didn’t err in finding insufficient materiality to support adjournment. ¶16.
Go To Brief

State v. Robert John Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, affirming unpublished decision
For Prihoda: Timothy T. Kay

Issue¹: “(W)hether the office of the clerk of circuit court may correct a clerical error in the sentence portion of a written judgment of conviction without prior court approval.” ¶3.

Holding¹: ¶5:

(W)e conclude that the office of the clerk of circuit court does not have the authority to correct a clerical error in the sentence portion of a written judgment of conviction. We conclude that the circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a change in the sentence portion of a written judgment of conviction because of an alleged clerical error. We further conclude that the circuit court may either correct the clerical error in the sentence portion of a written judgment of conviction or may direct the clerk’s office to make such a correction.

Prihoda was sentenced in 1976 on multiple counts. The trial court orally ordered count 5 consecutive to count 2, and count 2 consecutive to count 1. The written judgment of conviction, however, seemingly conflicted with the oral pronouncement, by failing to make count 5 expressly CS to count 1. The discrepancy wasn’t brought to light until 1997 when Prihoda sought to reduce his security classification. In response, the clerk of circuit court corrected the written judgment to correspond to the oral pronouncement. Prihoda sought to vacate this correction, and the trial court denied the motion. Everyone agrees that the original judgment was based on a clerical error. Nor is there any dispute that an unambiguous oral sentencing pronouncement controls a conflict with the written judgment. What, then, is to be done? The clerk can’t correct its own error independent of the court; instead, that power is reserved to the circuit court, and the power may be exercised at any time.

¶26 Accordingly, we adopt a bright-line rule to avoid disputes about a clerk’s powers: The office of a clerk of circuit court may not correct a clerical error in the sentence portion of a written judgment of conviction independent of the circuit court.

Indeed, compelling authority exists for the idea that an amendment to sentence must be accomplished by judicial order rather than administrative action: Earley v. Murray, 2nd Cir No. 04-4098-pr, 6/9/06.

Issue²: “(W)hether an offender should be given notice that a clerical correction of the sentence portion of the written judgment of conviction is being considered and should be present at a hearing to consider whether the written judgment is to be modified.”¶3

Holding²: “(W)e conclude that the circuit court has discretion to determine whether an offender is entitled to notice and a hearing before the correction of a clerical error in the sentence portion of a written judgment of conviction is made.” ¶6.

A defendant has, of course, a right to personal presence at pronouncement of judgment and sentence, § 971.04(1)(g). But that right simply doesn’t attach to mere correction of clerical error, which “by definition is minor and mechanical in nature.” (See also Trussell v. Bowersox, 8th Cir No. 05-2525, 5/9/06 (no right to presence at proceeding which was “simply the correction of a mistake” in sentence). The circuit court has discretion nonetheless to conduct an adversary hearing before correcting a clerical error, taking into account such factors as equity and transport. ¶31. No hearing appeared to be necessary in this case, because the facts and legal principles were so clear. ¶33. The court, though, carefully stresses that Prihoda did have the opportunity to join the issue:

¶51 In the present case, the circuit court, the court of appeals, and this court have considered the defendant’s challenges to the correction of a clerical error in his written judgment of conviction and have concluded that his arguments are without merit. The defendant has had his day in court, and his challenges to the correction have been fully considered.

Issue³: “(W)hether the doctrine of laches or Wis. Stat. § 893.40 (1997-98) proscribes a correction of a clerical error in the written judgment of conviction more than twenty years after the judgment is entered.” ¶3.

Holding³: “(W)e conclude that neither the doctrine of laches nor Wis. Stat. § 893.40 bars a correction of a clerical error in the sentence portion of a written judgment of conviction in the present case.” ¶7.

Laches has three elements: unreasonable delay; lack of knowledge the opposing party would assert its rights; prejudice. ¶37. Prihoda is hoist by his own petard, because over the years before the judgment was corrected he filed pro se motions asserting in effect that count 5 was indeed consecutive to count 1. ¶40. “Under these circumstances, the defendant’s claim that he expected the lower sentence cannot be given credence,” and he can’t show prejudice. ¶¶42-43. Nor does the § 893.40 20-year statute of limitations for action upon judgment apply. ¶¶46-49.

Unresolved Issue (?): Whether the sentences were illegal. Prihoda was sentenced on four armed robberies, concealing identity. Each sentence was for “30 years as to Armed Robbery [consecutive or concurrent to Count 1] plus five years for concealing, to run consecutive to first portion of this count (30 years).” These sentences would seem to be plainly illegal, under State v. Robinson, 102 Wis. 2d 343, 354-56, 306 N.W.2d (1981) (concealing identity not separate, substantive crime, but aggravates underlying offense; therefore, separate term for concealing identity consecutive to term for armed robbery is unauthorized disposition, requiring resentencing for imposition of single sentence). Prihoda had prior appeals, and it’s simply not clear whether he raised this particular defect (if so, then he must not have been successful, but that’s hard to imagine, because the issue seems so clear-cut). Can he raise it now, or will he run into an Escalona-Naranjo bar, not to say his own laches problem?

State v. Lawrence P. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, petition for rev. gr., 11/15/00, reversed on other grounds, 2001 WI 74
For Peters: Jane K. Smith
Issue: Whether a prior offense may be used to enhance a current one, where the plea and sentencing on the prior offense were accomplished by closed-circuit television.
Holding: Although the procedure used in the prior offense violated the &sect 971.04(1) statutory mandate of actual physical presence, it did not violate the constitution and therefore the prior offense could be used as a penalty enhancer.
Analysis: Peters, convicted of OAR, attempts to collaterally attack a prior OAR conviction on the ground that its plea and sentencing were accomplished by closed-circuit television rather than personal appearance.) The court begins with the assumption that a collateral attack requires a constitutional violation that affects the reliability of the prior conviction. ¶6. It’s clear that a statutory violation occurred: § 971.04(1) mandates a defendant’s physical presence at arraignment and sentencing. ¶7. However, this “does not automatically translate into a constitutional violation.” ¶10. The closed-circuit television proceeding comported with due process, the court agreeing with foreign authority that such a remote appearance is the legal equivalent of physical presence. ¶13. The case will turn on the arcana of collateral attack procedure. Under § 974.06(1), collateral attack isn’t limited to constitutional issues, but may assert a jurisdictional defect based on violation of the “laws of this state.” You could argue, that is, that the statutory violation was jurisdictional in nature (more concretely, a court lacks jurisdiction to take a “remote” guilty plea and, therefore, lacks jurisdiction to enter judgment of conviction on such a plea). Nonetheless, a defendant attacking an enhancement-prior may not be able to use § 974.06, because he’s not in custody under that offense. There is authority for the idea that the prior becomes entwined with the present sentence precisely because of its enhancement status.  Fawcett v. Bablitch, 962 F.2d 617 (7th Cir. 1992) (“person serving a sentence that has been enhanced because of a prior conviction may challenge the validity of that conviction by litigation against his current custodian”). But the viability of that holding may be questinable under Daniels v. U.S. and Lackawanna Co. D.A. v. Coss. And, the Wisconsin supreme court recently held that only denial of right to counsel will support an attack on an enhancer in the pending case, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528. This will make Peters’ already-difficult argument even harder.

State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126

For Leighton: Daniel Snyder

Issue: Whether the trial court erroneously exercised discretion in denying a continuance based on assertions that lead counsel wanted to obtain assistance of another attorney in trying the case, and also was having difficulty locating certain witnesses.

Holding: Given that these witnesses ultimately testified, and that the desired attorney never made an appearance or filed a notice of retainer, there was no error in denying continuance (court expressing its disdain for the inconsistent positions, denial of speedy trial and continuance). ¶¶27-32.

State v. Dennis E. Scott, 2000 WI App 51, 234 Wis. 2d 129, 608 N.W.2d 753

For Scott: Joseph E. Redding

Issue: Whether a defense witness was properly impeached with evidence that he was serving life in prison with no prospect for parole.

Holding: The witness’s attempt to admit the crimes and exonerate the defendant would have misled the jury absent revelation of his functional immunity stemming from his parole status: “where no practical, penal consequence could accrue, a jury would be misled were it not informed of the witness’s no-risk status.” ¶26.

State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 NW2d 552, affirmed by equally divided vote, 2001 WI 56, 243 Wis. 2d 476, 627 N.W.2d 484
For Bond: William Coleman; Janet Barnes; Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether, following arrest but before administration of Miranda rights, an officer’s response to the suspect’s asking why he’d been arrested was the functional equivalent of interrogation and therefore in violation of Miranda.

Holding: The officer’s provocative comment, which addressed a specific factual allegation about the crime, was the functional equivalent of interrogation and Bond’s response was therefore suppressible.

Bond was arrested for intimidation of a witness, based on a phone call during which the caller said he was “the man behind the man.” Bond asked why he was being arrested, adding, “oh, you’re the man” when told he’d find out in a few minutes. The officer then said, “no, I’m the man behind the man,” to which Bond responded, “oh, that is what this is about.” This all occurred before any rights were given or waived. Because it’s clear that the officer wasn’t interrogating Bond in any formal sense, the question becomes whether his comment was the functional equivalent of interrogation. The court of appeals spells out five relevant factors relevant to this question, all of which support functional interrogation under the facts. ¶¶15-20. Interrogation means, in addition to express questioning, any words or actions other than those normally attendant to arrest and custody that the officer should have known was reasonably likely to elicit an incriminating response. ¶¶16-17. Specific knowledge about the suspect may indicate that the officer should have known that his/her conduct would have the force of interrogation. ¶17. Though the test is objective, the officer’s intent may be relevant; another officer testified that the comment seemed designed to elicit an incriminating response. ¶18. The comment was especially provocative. ¶19. The comment was made directly to Bond. ¶20.