On Point

State v. Freeman Canady, 2000 WI App 87, 234 Wis. 2d 261, 610 N.W.2d 147
For Canady: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a defendant, convicted of resisting arrest, can be ordered to pay restitution for damage caused by a police officer in the course of subduing him.

Holding: Because the damage was a natural consequence of the defendant’s resisting, the defendant was a substantial factor in causing that damage and can be required to make restitution for it.

Canady pleaded guilty to burglary-related offenses, including resisting arrest at the scene of an apartment building. He had a pry bar in his jacket which an officer, in the course of subduing him, took and threw to prevent its use as a weapon; it broke a door pane, requiring that the door be replaced. The trial court ordered restitution for the door. The court of appeals upholds the order. Restitution is meant to compensate the victim, and, § 973.20 being construed broadly to accomplish that end, restitution is the rule not the exception. ¶8. Still, a causal nexus must be shown between the “crime considered at sentencing,” § 973.20(2), and the disputed damage. Causation requires that the defendant’s criminal activity be a substantial factor in causing the damage – i.e., harm must have been a natural consequence of the defendant’s actions.¶9. Canady was a substantial factor in the damage, because but for his resisting (which included reaching for the pry bar), there would have been no damage. ¶12. Though the holding is clear enough on the immediate facts, its truncated discussion leaves some question as to its reach. Canady was convicted of resisting, so his potential restitution liability for the broken door is indisputable (§§ 973.20(1g)&(1r): court shall order restitution for any “crime considered at sentencing,” defined as “any crime for which the defendant was convicted and any read-in crime”). And in any event, the damage occurred at the scene of the burglary, and would probably be considered at least factually integral to that crime (same way that flight from a scene is considered part of a theft, State v. Grady, 93 Wis.2d 1, 286 N.W.2d 607 (Ct. App. 1979)); more importantly, the damage was caused to the burglary victim’s property. The court nonetheless seems to suggest that restitution is barely, if at all, delimited by the charge. ¶10 (“crime considered at sentencing” broadly defined, to encompass defendant’s activity related to the crime, not just acts supporting the crime’s elements; defendant’s “entire course of conduct” to be considered). However, prior precedent establishes at least some formal limit on eligibility for restitution, namely that “restitution to a party with no relationship on the record to the crime of conviction … or to read-in crimes is improper.”State v. Mattes, 175 Wis.2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). There’s no reason to think that this case disturbs that precedent.

State v. Brian C. Wegner, 2000 WI App 231, 239 Wis.2d 96, 619 N.W.2d 289
For Wegner: Scott A. Szabrowicz

Issue: Whether the sentencing court erroneously exercised discretion, in sentencing after revocation, by failing to consider primary sentencing factors.

Holding:

¶9 We conclude that when the same judge presides at the sentencing after revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing; we will consider the original sentencing reasons to be implicitly adopted. Like the appellate court, the trial court should be able to rely upon the entire record, including the previous comments at the first sentencing. Cf. [McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971)]. This is especially true where it is the same judge. Further, it would be a mismanagement of judicial resources to require a court to go back to square one when sentencing after revocation. Accordingly, we find the proper exercise of discretion.

State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate

Issue: Whether the trial court improperly precluded Oswald from raising an NGI plea.

Holding:

¶ 49. The decision whether to grant a defendant’s motion to change his or her plea from “not guilty” to “not guilty by reason of mental disease or defect” is within the discretion of the trial court. See State v. Kazee, 192 Wis. 2d 213, 221, 531 N.W.2d 332, 335 (Ct. App. 1995). Thus, we will not disturb that decision as long as it is “consistent with the facts of record and established legal principles.”Id. at 222, 531 N.W.2d at 336 (quoted source omitted). Furthermore, when a defendant makes an eleventh-hour request to change 135*135 his or her plea, he or she has the burden of showing why the plea change is appropriate. See id. In other words, the defendant must make an offer of proof encompassing the elements of the defense as set forth in § 971.15, STATS. See Kazee, 192 Wis. 2d at 222-23, 531 N.W.2d at 336. In addition, the defendant must show why the nonresponsibility plea was not entered earlier. See id. at 223, 531 N.W.2d at 336. Ultimately, when dealing with a request to change a plea at a late stage of the proceedings, the trial court must balance the interests of the defendant with the institutional need to resolve cases in a timely fashion. See id. at 222, 531 N.W.2d at 336.

¶ 50. Oswald made neither of the required threshold showings in this case. First, regarding his offer of proof, Oswald points to a report by Dr. Feinsilver, who had conducted a psychological examination of Oswald. Feinsilver opined that Oswald did suffer from clinically recognized mental disorders. But, Feinsilver went on to conclude that Oswald was aware of the wrongfulness of his conduct. Oswald contends that the “substantial capacity” question was for the jury and thus Feinsilver’s conclusion was irrelevant. He points out that “[a] favorable expert opinion is not an indispensable prerequisite to a finding of mental disease or defect.” But the problem with Oswald’s offer of proof is not the lack of an expert opinion; it is the presence of an uncontested expert opinion that goes contrary to the elements of the defense as set forth in the statute. Second, Oswald makes no attempt to explain the timing of his request. Indeed, at theMachner^[7] hearing, 136*136 Oswald’s attorney testified that Oswald had told him that “he didn’t for a second think he was insane and that this [plea] was nothing more than a sham and a manipulation on his part.” Oswald did not dispute that testimony. Given the insufficiency of Oswald’s offer of proof and the timing of his request to change his plea, the trial court’s denial of Oswald’s request was consistent with the facts of this case and relevant legal principles. We will not disturb the decision.

State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes

Issue: Whether the state’s pretrial failure to disclose that its witness used the RRASOR screening instrument to evaluate Pletz violated his discovery rights.

Holding: Pletz waived any discovery objection by not promptly objecting, given that he was provided this information before the witness testified. ¶26. Moreover, there was no violation in any event: The scientific study which alerted the witness to the RRASOR wasn’t published until after the discovery process, and wasn’t applied by the witness to Pletz until shortly before the witness testified. “The challenged information was new, and the State disclosed the information to Pletz as soon as it discovered it.” ¶¶24-25. (The court further notes that the appropriate remedy for a disclosure violation would have been an adjournment. ¶26 n. 3.)

Edwin C. West v. Macht, 2000 WI App 134, 237 Wis. 2d 265, 614 N.W.2d 34

Issue: Whether living unit reassignment of a Ch. 980 subject was made in retaliation for his exercise of his constitutional right to petition on grievances.

Holding: A commitment subject has a protected interest against being punished for exercising first amendment rights, ¶15; however, those rights may be validly restricted if “reasonably related to legitimate therapeutic and institutional interests.” ¶17. Because the institution established reasonable rules regulating the conduct that West sought to exercise, and because he failed to follow those rules, the discipline impose by the institution — reassignment to a high management unit — was valid and not retaliatory. ¶20-23.

State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro

Issue/Holding: Level of community support” enjoyed by the defendant not a new factor justifying sentence reduction.

State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes

Issue: Whether letters from DSM-IV committee members, regarding the impact of an assault on a diagnosis of pedophilia, were properly admitted.

Holding: A basis for an expert opinion, otherwise hearsay, is admissible if of “a type reasonably relied upon by experts in the particular field…. The letters relied on here, although authored by members of the DSM-IV committee, are isolated opinions given in response to hypothetical questions. Therefore, we conclude that the letters do not satisfy the standard enunciated above, and therefore should not have been admitted. However, we conclude that admission of the two letters constituted harmless error.” ¶29.

¶30 The standard of review under which we determine harmless error ‘is not whether some harm has resulted but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than the purportedly inadmissible evidence, that would convict the defendant beyond a reasonable doubt.’ State v. Van Straten, 140 Wis. 2d 306, 318-19, 409 N.W.2d 448 (Ct. App. 1987). There is sufficient evidence in the record here to sustain the jury’s determination that Pletz is a sexually violent person, even without the inadmissible letters.

It is been settled that the harmless error test is whether there is a reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222 (1985). The conviction must be reversed unless the court is certain that the error did not influence the jury. Id. at 541-42. The state, as the beneficiary of the error bears the burden of proof. Id., at 547 n. 11. The court of appeals appears to have relied on the prior, much more lax test: “(E)ven if the letters were excluded, the jury would still have been able to find that Pletz was a sexually violent person beyond a reasonable doubt.” ¶32. But that only inverts the proper question, whether the state can show beyond reasonable doubt that the error did not contribute to the verdict, thus putting into question whether this result is reliable.