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| Allocution (Also see discussion here) |
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| Incarceration Release Programs ("Boot Camp"; "ERP") |
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| Consecutive Sentences -- Authority to Impose |
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| Costs |
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DNA Collection, § 973.047, and Surcharge, § 973.046 (For fourth amendment issues, go here) |
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Enhancers
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| Expunction |
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| Fines |
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| Mandatory Penalty |
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Modification/Review
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Restitution
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Sentence Credit
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| Probation: Go to Probation, PLRA |
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| Allocution -- Generally |
| State v. James C. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996) |
| For Lindsey: Park M. Drescher |
Issue/Holding: It is undisputed that the trial court at the sentencing hearing erred when it did not afford Lindsey the right of allocution provided by § 972.14(2), Stats. ...Also see discussion here. |
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| Allocution -- Timing of Exercise of Right |
| State v. Quantae T. Hines, 2007 WI App 39 |
| For Hines: Richard D. Martin, SPD, Milwaukee Appellate |
| Issue/Holding: A defendant has a right to allocute during a reconfinement proceeding, the remedy for violation of which is resentencing, ¶¶18-20. |
The decision to publish is somewhat
puzzling. The outcome is largely controlled by
State
v. John C. Brown, 2006 WI 131, which held that reconfinement is
essentially a sentencing proceeding. True,
Brown didn’t discuss allocution, so this
is a slight— very slight—extension
of that holding. That said, the result is much more interesting when the facts
are taken into account. After the
reconfinement sentence was announced, Hines spoke up and made a pitch for
leniency, ¶9. The trial judge was unmoved; as she later said, on postconviction
motion, ¶10:… Even assuming arguendo that the defendant had a due process right to allocution … he was clearly afforded that right…. The court considered the defendant’s statement but was not persuaded to alter its reconfinement decision. Any failure … to ask the defendant before ordering reconfinement whether he had anything to say was harmless….And so, the question is really one of harmless error. The defendant was afforded an opportunity to speak, it’s just that this was immediately after rather than before pronouncement of sentence. The court of appeals might have said that such a violation was a mere trifle, but that’s decidedly not what it said. Instead, the result is comprehensible only as a bright-line rule, which the court barely hints at, in a passing remark, ¶18: “Part of the court’s consideration at a sentencing includes the defendant’s right to allocute before the court pronounces its decision. See Wis. Stat. § 972.14(2); Greve, 272 Wis. 2d 444, ¶35.” Thus, “before” means exactly that, and not a moment later. |
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| Allocution -- Shackled Deaf Defendant: Must Show Actual Interference with Ability to Sign Effectively |
| State v. Jeremy D. Russ, 2006 WI App 9 |
| For Russ: Martha K. Askins, SPD, Madison Appellate |
Issue/Holding: A deaf defendant
who had been shackled when he entered a guilty plea and was sentenced must show
actual inability to communicate effectively in order to meet his burden of
showing a violation of rights. Thus, even though the defendant adduced expert
proof at the postconviction hearing “that communication would be limited and
difficult if a deaf person who used sign language were handcuffed,” he did not
meet his burden of proof:
¶10 As the trial court observed, the expert’s testimony—the only evidence presented at the postconviction hearing—was purely theoretical. It established that Russ could have had a very difficult time communicating information to others in the courtroom. Russ, however, must prove that he was actually prevented from effectively communicating. Russ presented no evidence that the shackles hindered him from imparting any particular piece of information or from directing questions to anybody in the courtroom. Neither his trial counsel nor the interpreters took the stand to attest to their inability at any point during sentencing to understand Russ; nor did Russ give any testimony of his own. Moreover, despite the court’s invitation to let it know if the restraints prevented Russ from communicating adequately, Russ never notified the court of any such difficulty either personally or through counsel.Deck v. Missouri, 125 S. Ct. 2005 (2005) distinguished, ¶11: that decision “was primarily concerned with the prejudicial effect of shackles” on a jury; Court’s observation that shackles could interfere with right to communicate with counsel deemed mere “observation” in nature of dicta, ¶11. A one-judge concurrence (¶¶18-23) makes some useful points about what factors ought to inform the discretionary determination of shackling, something the concurrence says should be “saved only for extraordinary cases.” For a succinct recent analysis of Deck, see Lakin v. Stine, 6th Cir No. 05-1388, 12/19/05. |
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(See Wisconsin Defender and training articles on Earned Release [2003: overview at inception; 2005: follow-up (1), and (2), 2005]; and Challenge Incarceration [2003: inception; 2005: follow-up (1) and (2)] Programs) |
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| Earned Release Program – Petition for Eligibility under Pre-Effective Date (7/26/03) Sentence: DOC Approval Required but Refusal to Take Position = Approval |
| State v. Kathy J. Johnson, 2007 WI App 41 |
| For Johnson: Jeremy Perri, SPD, Milwaukee Appellate |
| Issue: Whether DOC policy, for inmates under sentence commencing prior to July 26, 2003, to take no position on an ERP petition constitutes approval of the petition under Wis. Stat. § 302.05(3)(e). |
Holding:
¶8 Wisconsin Stat. § 302.05(3)(e) governs inmate petitions for the determination of eligibility for the ERP for inmates sentenced prior to the effective date of § 302.05, i.e., July 26, 2003. Section 302.05(3)(e) provides the procedure to be followed and states, in relevant part:Thus, DOC refusal to act on a petition is tantamount to approval to bring the petition, ¶17. This holding, however, is limited to the current DOC practice of blanket refusal to act; if DOC were to exercise individuated discretion, then the outcome would be different, ¶18. The court also, in passing, indicates that an inmate’s previous participation in ERP may be factored against current eligibility, ¶16 n. 8.If an inmate is serving the term of confinement portion of a bifurcated sentence imposed under s. 973.01, the sentence was imposed before July 26, 2003, and the inmate satisfies the criteria under par. (a) 1., the inmate may, with the department’s approval, petition the sentencing court to determine whether he or she is eligible or ineligible to participate in the earned release program under this subsection….(Emphasis added.) |
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| Earned Release Program – Statutory Ineligibility Due to Type of Crime – Equal Protection (and Substantive Due Process) |
| State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06 |
| For Lynch: David R. Karpe |
| Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm. |
Holding:
¶18 Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis. Stat. ch. 940 to participate in the earned release program. While one purpose of the earned release program is undoubtedly to encourage inmates to participate in treatment for substance abuse, it is also significant that the result of successful participation is a reduction in the time a convicted person must serve in confinement. [6] In effect, participation in the program is an opportunity to have a lesser punishment than that originally imposed. Excluding persons who have committed more serious crimes from this opportunity for reduced confinement is rationally related to the legitimate purpose of punishing more serious crimes more severely. A classification that treats persons differently, for purposes of participation in this program, based on whether their conduct has caused death or great bodily harm, is rationally related to the legitimate purpose of punishing more severely those persons who commit more serious crimes. It is rational to treat conduct that causes death or great bodily harm differently from conduct that does not have that result and to punish the former more severely.Substantive due process challenge rejected for same reason, given that the tests are indistinct, ¶21. |
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| Challenge Incarceration Program ("Boot Camp") -- §§ 973.01(3m), 302.045 – Authority to Impose Waiting Period for Entry |
| State v. David A. Lehman, 2004 WI App 59, PFR filed 3/4/04 |
| For Lehman: Leonard D. Kachinsky |
Issue/Holding:
Sentencing court may impose 4-year waiting period for entry into Challenge
Incarceration Program (“boot camp”), §§ 302.045, 973.01(3m):¶17. The intent of the legislature is therefore advanced by an interpretation of Wis. Stat. § 973.01(3m) that allows a sentencing court to determine not only whether a defendant is eligible for the CIP, but also to set a date of eligibility within the term of confinement in prison. We agree with the State that "[a]llowing a sentencing court to use its discretion in determining when the defendant would be eligible for the CIP comports with the intent of the legislature." |
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| Challenge Incarceration Program ("Boot Camp") -- §§ 973.01(3m), 302.045 |
| State v. Ashley B. Steele, 2001 WI App 160, PFR filed 6/25/01 |
| Steele: Christopher William Rose |
| Issue: Whether sentencing
eligibility for "boot camp" is determined by bright-line statutory guidelines, or by exercise of
trial court discretion. Holding: ¶12. While an offender must meet the eligibility requirements of Wis. Stat. § 302.045(2) to participate in the challenge incarceration program, pursuant to Wis. Stat. § 973.01(3m), the trial court must also determine if the offender is eligible for the program, in the exercise of its sentencing discretion. Here, the trial court determined that despite Steele's qualifications under § 302.045(2), the seriousness of his offenses precluded his participation in the program. We cannot say that this constituted a misuse of the trial court's broad sentencing discretion. We therefore affirm the order of the trial court. |
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| Earned Release Program ("ERP") -- Exercise of Discretion to Determine Eligibility |
| State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06 |
| For Owens: Dianne M. Erickson |
| Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.” |
Holding:
¶9 Owens complains that even though the trial court set forth an explanation for its sentence, it failed to separately explain its rationale for denying his ERP participation request. However, Wis. Stat. § 973.01(3g) explicitly states an ERP eligibility decision is part of the court’s exercise of sentencing discretion. [3] Thus, while the trial court must state whether the defendant is eligible or ineligible for the program, we do not read the statute to require completely separate findings on the reasons for the eligibility decision, so long as the overall sentencing rationale also justifies the ERP determination.The sentencing court initially indicated that “Owens was ‘not eligible by age’ for either” ERP or Challenge Incarceration (CIP), ¶3. The latter program is age-restricted, ERP isn’t. Odds are, the judge simply got this eligibility requirement wrong. It happens, and there’s nothing unusual or worthy of condemnation about that. In theory, that’s the purpose of postconviction motions, to let the judge correct errors brought to his or her attention. But in practice, and this is a decent illustration, the judge instead “explains,” or “clarifies” that indeed there was no error because after all something else was meant other than the plain implication of the words actually spoken. We’re left, then, with the idae that what the judge really meant was an unarticulated rationale: ERP was denied not on account of the illicit factor of age but on the proper ones of character of the defendant and need for community protection. That’s what she meant, she just never quite around to saying it out loud. These primary sentencing factors are appropriate bases on which to deny ERP, see State v. James L. Montroy, 2005 WI App 230, but that still begs the question of proper exercise of discretion, doesn’t it? For one thing, State v. Gallion, 2004 WI 42 was supposed to usher in a new era of close appellate review of sentencing discretion; in particular (¶38), “What has previously been satisfied with implied rationale must now be set forth on the record.” And isn’t that exactly what occurred in Owens’s instance? To that criticism, the court of appeals apparently would respond that under § 973.01(3g) ERP merely is “part of the court’s exercise of sentencing discretion,” ¶9 n. 3. The suggestion is that the ERP decision is merely embedded in the overall exercise, that it need not support a style="separate statement of reasons. And, indeed, the overall thrust of this decision is that the trial court’s exercise of discretion on ERP need rest only on an “implied rationale.” Not only is this contrary to Gallion (though not to the persistent undermining of that case by the court of appeals virtually from the day it was released) but also to the court of appeals’ own declarations with respect to the procedurally identical CIP: State v. Ashley B. Steele, 2001 WI App 160, ¶ (sentencing judge must first determine preliminary CIP eligibility and then “must determine, exercising its own sentencing discretion, whether” eligibility will be granted); State v. David A. Lehman, 2004 WI App 59, ¶¶15-16 (TIS scheme places responsibility on judges for more carefully fashioned sentencings, CIP included: “Clearly, the legislature intended to provide greater judicial discretion for judges imposing bifurcated sentences and considering CIP eligibility.”). Nor does § 973.01(3g) quite lend itself to the court of appeals’ spin: “the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible” for ERP. The court of appeals reads the text as if it supports an implied rationale on eligibility, but it says nothing of the kind. To the contrary, by making ERP “part” of sentencing discretion, it makes the ERP decision no less important than any other exercise of sentencing discretion; places it within the orbit of Gallion. (Of course, if Gallion is only to be scoffed at then its gravitational pull is going to be weak anyway.) And the purpose of ERP? “Gov. Jim Doyle proposed the program and the Legislature included it in the biennial budget bill as a way to reduce prison populations and give judges another sentencing tool.” (http://www.wicourts.gov/news/thirdbranch/docs/fall03.pdf) Is that purpose fulfilled by the cavalier treatment given not just by the trial judge but also by the court of appeals? Then there is the purported exercise of discretion on its own terms. Granted, an attack on an actual exercise of discretion based on proper factor is almost necessarily doomed by definition. But consider the first reason inferred (!) by the court of appeals, that “from his past apathy and failure to seek help, … Owens was neither sincere about wanting substance abuse treatment nor likely to succeed in the treatment program,” ¶10. Ponder that for a moment. Failure to obtain treatment is a basis to deny it? Anyone with a drug problem carries a lot of baggage, and by definition it’s going to boil down to failed opportunities. Owens hadn’t successfully resolved his drug problem. No kidding. That’s why he should have been considered for treatment, not arbitrarily barred. If he’d been treated successfully he wouldn’t have had a drug problem and ERP would have been irrelevant. Or, rather, the court of appeals has made ERP generally irrelevant, by ratifying the trial judge’s make-weight rationale. |
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| Earned Release Program ("ERP") -- Exercise of Discretion to Determine Eligibility |
| State v. James L. Montroy, 2005 WI App 230 |
| For Montroy: Jay E. Heit; Stephanie L. Finn |
Issue/Holding: The sentencing court properly exercised
discretion in denying eligibility for Earned Release, § 302.05(3), despite
misperceiving at one point that defendant was statutorily ineligible:¶17 … [A]t the December 6, 2004, [postconviction] hearing … [t]he court stated:In the event the background’s not clear enough: at sentencing, the court premised denial of eligibility on Montroy’s “many drug convictions,” ¶4. You might think that persistent drug involvement is a reason for not against eligibility in a program that is, after all, supposed to treat inmates with drug problems. But the idea makes more sense if seen as support for the judge’s conclusion that the individual simply isn’t amenable to treatment – which is probably the best way to construe the remark. Montroy’s claim is that the court’s determination was based on the inaccurate assumption that he was statutorily ineligible – yet, Montroy himself seemingly contributed to this problem, by inducing a ruling on that false assumption (¶5). The court of appeals has imposed an estoppel bar for less. No matter. Montroy eventually brought this to a head with a postconviction motion, and the trial court ruled as quoted above. The long and short of it is that a defendant’s “long criminal record,” showing that “(h)e is incorrigible,” is a proper basis on which to deny ERP eligibility. And though the court of appeals doesn’t provide any embellishment, it’s pretty clear that these postconviction remarks do indeed support the implication of the sentencing remarks that Montroy simply would not benefit from the program. Seen in that light, this is a narrow holding.Well, of course, the Court is very familiar with Mr. Montroy. He’s had a long criminal record since he’s been here in this state. And those are the primary considerations that the Court took into consideration.The State argues that the court’s statements here demonstrate that it exercised its discretion to deem Montroy ineligible. |
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| Earned Release Program ("ERP"), § 973.01(3) -- Trial Court's Authority to Determine When as Well as Whether Defendant Is Eligible -- Identity of "CIP" Purpose |
| State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04 |
| For White: Leonard Kachinsky |
| Issue/Holding: A sentencing court exercising discretion on eligibility for the earned release program, § 973.01(3g), has authority to determine not only whether but also when the defendant is eligible for the program. The language and purpose of the earned release statute is “almost identical” to the “boot camp” statute, § 973.01(3m), which the court previously held supported the assignment of a waiting period by the sentencing court. State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677 N.W.2d 644. That prior decision thus controls this issue. ¶¶8-10. |
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| Consecutive Sentences -- No Authority to Impose, Relative to Jail Time as Condition of Probation in Another Case -- Remedy of Resentencing |
| State v. Daron E. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997) |
| For Maron: Susan E. Alesia, SPD, Madison Appellate |
Issue/Holding1:... We conclude that § 973.15(2), Stats., does not give the trial court authority to order that the sentence be served consecutive to jail time already being served as a condition of probation. ...Issue/Holding2: As a general rule, resentencing is the proper method to correct a sentence which is not in accord with the law. State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841, 844 (Ct. App. 1996). Maron argues, however, that because he has completed serving the jail time that was a condition of probation in the first case, a remand for resentencing would permit the trial court to do what § 973.15(2), Stats., does not authorize—impose a sentence consecutive to the prior probation. ... A sentencing proceeding is not a game, and when a trial court mistakenly imposes a criminal disposition that is not authorized by law, the result should not be a windfall to the defendant. State v. Upchurch, 101 Wis.2d 329, 336, 305 N.W.2d 57, 61 (1981). We conclude that a remand for resentencing is the proper method to correct the sentence. |
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| Consecutive Sentences -- Authority to Stay Sentence Until Release or Discharge on Ch. 980 Commitment. |
| State v. David Carneal White, 2000 WI App 147, 237 Wis.2d 699, 615 N.W.2d 667 |
| For White: Jeffrey A. Kingsley |
| Issue: Whether a court has authority to stay a sentence until the defendant is released or discharged from an otherwise unrelated Ch. 980 commitment. |
Holding: The purposes of
§ 971.17
NGI and Ch. 980 SVP commitments being similar (¶¶8-9),
the reasoning of
State v.
Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) applies, ¶11: Accordingly, we conclude that a circuit court has authority to stay a sentence for "legal cause" during the period of a defendant's commitment under WIS. STAT. ch. 980. We also conclude that a circuit court, in deciding whether to stay a sentence during the period of a ch. 980 commitment, must exercise discretion on a case-by-case basis in order to balance and give effect to the goals of both mental health treatment and incarceration. Just as the supreme court concluded, with respect to WIS. STAT. §§ 973.15(1), (8)(a) and 971.17, we conclude, with respect to § 973.15(1), (8)(a) and ch. 980, that a sentencing court must "make a reasoned determination about imposing or staying a prison sentence on the basis of the facts of each case." Szulczewski, 216 Wis. 2d at 505.Analysis: The holding is self-explanatory. More interestingly, the court's explicit linkage of 980 and 971.17 commitments illustrates the incremental tendency to "criminalize" the putatatively civil commitment procedure of Ch. 980. The holding in this case might not be problematic if 980 and 971.17 procedures were comparable; but they're not: "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). Our supreme court has also recognized that insanity and civil commitment subjects aren't really similar. E.g., State v. Gebarski, 90 Wis. 2d 754, 771-72, 280 N.W.2d 672 (1979); State v. Field, 118 Wis. 2d 269, 347 N.W.2d 365 (1984). |
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| Consecutive Sentences - Sentence Consecutive to Future Revocation |
| State v. James E. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432 |
| Issue: Whether a sentence can be ordered to run "consecutive to revocation" when the defendant's parole has not yet been revoked. |
| Holding: A court has authority, under Wis. Stat. § 973.15(2)(a), to make the current sentence consecutive to a revocation of parole, even though the revocation has not yet occurred. (To account for the possibility that the defendant won't be revoked, trial courts are "urge(d) [to] direct that in the event that the parole or probation is not revoked, the instant sentence should commence forthwith," ¶11 n. 2.) |
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Same result as to probation revocation:
State v. David Thompson, 208 Wis. 2d 253, 559 N.W.2d 917 (Ct. App. 1997),
and essentially followed in this case. On a different point: if your client faces federal sentencing while state charges are pending, be aware that "the circuits are split as to whether a federal court has the authority to order that the sentence it is imposing run concurrently with a state sentence that has not yet been imposed," Abdul-Malik v. Hawk-Sawyer, 2nd Cir. No. 04-3877-pr, 4/5/05, and cites. To make matters worse, a state court's specification that its term run concurrent with a federal one isn't bdingin on federal authorities. "Thus in some circuits, when a defendant is sentenced first in federal court and then on an unrelated offense in state court, neither judge can effect concurrent sentencing even if that is the intention of both Id. |
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| Costs - allocated per count, § 814.60(1) |
| State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999) |
| For Carter: Paul G. LaZotte |
| Issue/Holding: The $20 fee for the clerk of court under § 814.60(1) is allocated on a per-count, rather than per-case, basis. |
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| Costs -- Attorney Fees – Constitutional Limits, Recoupment: Indigency Determination |
| State v. Kevin J. Helsper, 2006 WI App 243 |
| For Helsper: Glenn L. Cushing, SPD, Madison Appellate |
Issue/Holding:¶7 Constitutional limits on a state’s recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665 (1983). Recoupment statutes must be tailored to “impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.” Fuller v. Oregon, 417 U.S. 40, 54 (1974).As a result, these requirements are read into § 973.07: ¶16 We fill in this legislative silence with the minimum requirements in Fuller. We hold that, at least where no prior determination of ability to pay exists, the court must consider whether the defendant had the ability to pay the fine when it exercises its discretion under Wis. Stat. § 973.07. The court’s consideration of this issue must be based on a finding of ability to pay made at a hearing where the defendant is given notice and an opportunity to be heard. [4] Here, no such finding was made at sentencing, at the time Helsper’s fees were set, or at the time the commitment order was issued. |
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| Costs -- Bail, as Satisfaction |
| State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05 |
| For Baker: William E. Schmaal, SPD, Madison Appellate |
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Issue/Holding: The plain text of § 969.02(6) mandates that bail money be used to satisfy court costs, with no room for discretionary return to the depositor rather than payment of costs. ¶¶7-9.
This is a misdemeanor, but the relevant felony statute, § 969.03(4), is indistinguishable and the holding would undoubtedly apply. Note, too, that the latter statute has been upheld against due process / notice attack, State v. Iglesia, 185 Wis. 2d 117, 517 N.W.2d 175 (1994). It may be worth recalling that restitution is treated distinctly and is not subject to these bail-satisfaction provisions, State v. Cetnarowski, 166 Wis. 2d 700, 713, 480 N.W.2d 790 (Ct. App. 1992). Baker, it should be mentioned, also argued that the trial court may – and in this instance at least implicitly did – waive court costs, thus freeing the way for return of all the cash bail. The court of appeals, however, declines to reach the issue, leaving it open for further litigation, ¶10: “In general, § 814.29(1) protects the constitutional right of access to the courts for all. Whether § 814.29(1) provides a basis to waive court costs ordered at judgment in a criminal proceeding is not an issue that is properly before us today. The circuit court did not waive Baker's costs-it ordered them satisfied through credit for jail incarceration time.” In other words, because the issue of waiver of costs is explicitly left open, this holding does not inhibit you from asking the court to waive costs, thus freeing up posted bail for return to the depositor. |
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| Costs - jail assessment - § 302.46(1) - fine or forfeiture required. |
| State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999). |
| For Carter: Paul G. LaZotte. |
| Issue/Holding: The jail assessment in §§ 302.46(1) & 814.60(2)(ag) is contingent on imposition of a fine or forfeiture. |
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| Costs -- Order to Produce |
| State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862 |
| For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate |
| Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances. |
Holding: ¶4 We reverse. Our decision in State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996) interpreted the term 'fees' in a related subsection of the criminal costs statute, Wis. Stat. § 973.06, to include only those sums 'ordinarily charged to and payable by another,' not internal operating expenses of a governmental unit. The record in this case contains conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally 'charged to and payable by another,' or are merely internal operating expenses of the Milwaukee County Sheriff's Department. The record is similarly underdeveloped and murky on the specific amounts assessed in this case, and there is no record at all on the constitutional issues. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion....Go to Brief |
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| Costs - payment for sexual assault examination. |
| State v. Daniel E. Rohe, 230 Wis.2d 294, 602 N.W.2d 125 (Ct. App. 1999). |
| For Rohe: Charles B. Vetzner, SPD, Madison Appellate. |
| Issue: Whether costs for a sexual assault examination were properly taxable, where the examination neither produced any results nor was used at trial. |
| Holding: Because the examination was part of the state's investigation and prosecution; and because the examiners were on the state's witness list, their "development of evidence was used in the prosecution" and their fees were taxable under the expert witness provision of § 973.06(1)(c). |
| Go To Brief |
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| Costs for Standby Counsel |
| State v. John W. Campbell, 2006 WI 99, on certification |
| For Campbell: Charles B. Vetzner, SPD, Madison Appellate |
Issue/Holding:
¶72 Wisconsin Stat. § 973.06 permits the court to impose a lengthy list of costs upon an unsuccessful defendant. At sentencing, the court may require a probationer to reimburse the county or the state, as applicable, "for any costs for legal representation . . . for the defense of the case." Wis. Stat. §§ 973.09(1g) and 977.07(2m). We think the term "defense attorney" in § 973.06 is broad enough to cover standby counsel in certain situations.Because the circuit court ordered counsel fees without regard to ability to pay, Campbell is entitled on remand to an indigency hearing, ¶¶79-80. |
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| Costs -- Travel Expense of State's Witness |
| State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69 |
| For Gordon: Steven P. Weiss, SPD, Madison Appellate |
| Issue/Holding: The trial court erroneously exercised discretion in imposing costs for the travel expense of an officer, in that this expense was necessitated by a change in trial date attributable primarily to the prosecution, not the defendant. ¶¶49-51 |
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| DNA Surcharge – Generally |
| State v. Ray Shawn Cherry, 2008 WI App 80 |
| For Cherry: John T. Wasielewski |
Issue/Holding:
¶5 The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay the $250 surcharge for the DNA sample. Wis. Stat. § 973.046(1r). When the felony does not involve a sex crime under one of those statutes, however, the trial court may order the defendant to pay the $250 DNA surcharge. Sec. 973.046(1g). Thus, in the latter situation, the trial court has the discretion to decide whether or not to impose the DNA surcharge. |
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| (Permissive) DNA Surcharge – Exercise of Discretion |
| State v. Ray Shawn Cherry, 2008 WI App 80 |
| For Cherry: John T. Wasielewski |
| Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment. |
Holding:
¶9 We hold that in assessing whether to impose the DNA surcharge, the trial court should consider any and all factors pertinent to the case before it, and that it should set forth in the record the factors it considered and the rationale underlying its decision for imposing the DNA surcharge in that case. Such is the exercise of discretion contemplated both by the statute and our supreme court’s pronouncement in State v. Gallion, 2004 WI 42, ¶19, 270 Wis. 2d 535, 678 N.W.2d 197 (The exercise of discretion contemplates a process of reasoning: “‘This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standard.’”) (citation omitted).The court of appeals has long held that a sentencing court erroneously exercises discretion when it treats as mandatory a disposition that in fact is discretionary. E.g., State v. Martin, 100 Wis. 2d 326, 302 N.W.2d 58 (Ct. App. 1981) (sentence overturned where court stated it would never grant probation on drug offense). Cherry fits precisely within that paradigm, at least as a pragmatic matter, in that the sentencing court also treated as mandatory something that is discretionary. The court of appeals, then, could have simply cited Martin and then gone on to other business. But it didn’t, relying instead on Gallion, which makes the impact broader. In brief, the court seems more than willing to apply Gallion to aspects of sentence other than imprisonment—not just this costs case but also, and recently, fines, State v. Ahern Ramel, 2007 WI App 271, ¶14 (“under Gallion some explanation of why the court imposes a fine is required”). The factors will differ depending on the context, of course, but that there must be some articulation of relevant factors may not be doubted. Now, if the court were only willing to put some teeth into Gallion as it relates to the prison portion of the sentence … |
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| DNA Collection, § 973.047, and Surcharge, § 973.046 -- Prior Collection |
| State v. Franciollo L. Jones, 2004 WI App 212, PFR filed 11/11/04 |
| For Jones: Syovata Edari; Ellen Henak (on PFR), SPD, Milwaukee Appellate |
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Issue: Whether the trial court properly ordered Jones to pay a DNA surcharge even though he had already provided a DNA sample in an earlier case.
Holding: ¶5 WISCONSIN STAT. § 973.047 obligates the trial court to require anyone convicted of a felony to provide a DNA specimen. … As the statute advises, the purpose behind this requirement is to create a DNA databank. The statute makes no exception for persons who have already submitted DNA samples, although the trial court in this case found that the State Crime Laboratory could not use more than one sample per person.This is a chronic problem, in Milwaukee anyway; the surcharge ($250) is not inconsiderable and this result a real shame – not least because the decision doesn’t quite resolve some underlying problems. As the block quotes suggest, the legislature places DNA collection and surcharge in two distinct statutes. For certain specified felonies the sentencing court must impose a $250 surcharge; for all other felonies, the surcharge is discretionary. § 973.046. And as to all felony convictions, the sentencing court must order the defendant to provide a DNA sample, under § 973.047. (As mentioned below, the administrative code mandates a surcharge whenever a sample is ordered, which means that a surcharge is really non-discretionary in felonies.) In Jones’ instance, the court ordered that he provide a sample under § 973.047 – but as it turned out this was unnecessary, because the state already had his sample, and no attempt was ever made to implement the collection order. But a surcharge was also ordered (as noted, the scheme made it mandatory); when Jones pointed out on postconviction motion that the state didn’t need his sample, the judge said that the surcharge was a discretionary matter and would be forgiven as a matter of discretion if Jones could show he’d paid the surcharge on the earlier collection. The court of appeals' affirmance pays scant attention to significant underlying problems.
A survey of fourth amendment aspects of collecting DNA from prisoners may be found here. Long and short of it is that DNA collection is upheld under either of two rationales, “special-needs” and “reasonableness-balancing”; in theory, at least, neither theory should allow multiple collections from the same person. Once the state already has the person’s sample, there can be no need to collect another. In other words, the order that Jones provide an additional sample violated his fourth amendment rights. The court of appeals more or less finesses this problem by assuming that the trial court rescinded this order. ¶1.True enough, once the order to provide a sample is taken off the table, it probably doesn’t matter why. But then the question becomes why the court ordered the surcharge in the first place. If the court of appeals can’t be faulted for ignoring the threshold fourth amendment dimension of the issue, its treatment of the trial court’s discretion is seriously problematic.
Start with this premise: because a surcharge is in effect a fine, and because a fine is reviewed same as a sentence, State v. Kuechler, 2003 WI App 245, ¶¶7-12, a surcharge must also be reviewed as an act of sentencing discretion. And that means triggering the close review recently mandated by State v. Gallion, 2004 WI 42. You won’t find any sort of close scrutiny of Jones’ surcharge. Indeed, you’ll be hard pressed to find any scrutiny. About all the court of appeals says is that because the trial court could exercise discretion in favor of a surcharge, its exercise was proper. ¶11. In theory, that is, a reviewing court needs to know exactly why this surcharge advanced any sentencing goal -- something not explained in this opinion. One thing is clear though: the judge linked the surcharge to the sample ordered in a prior, unrelated case. This is at least seemingly improper under State v. Oakley, 2000 WI 37 (court can’t make payment of prior, unpaid fine condition of probation in new case). How is Jones’ situation meaningfully distinguishable? The court of appeals doesn’t say, indeed doesn’t even cite Oakley. That said, an alternative theory is being litigated: a DNA surcharge is not in the nature of a fine, but, rather, is a “service or fee” that may be forgiven on account of indigency under § 814.29(1)(a); this argument is raised argument in a pending court of appeals case, State v. Ryan E. Baker, Nos. 04-0590 / 0591-CR, Dist. IV. But that’s not quite all.
In at least some instances, the judge orders the DNA sample without mentioning the surcharge and then the clerk imposes the surcharge in the judgment of conviction as a ministerial act. Nothing wrong with that, because where the court does order a sample, then the court must (i.e., “shall”) “impose a DNA analysis surcharge of $250[.]” Admin. Code Jus § 9.08(1). (Not clear from the facts if this was what happened to Jones.) Then, as in Jones’ instance, the defendant goes back on postconviction motion and says the order to provide a sample should be vacated, and the trial court then exercises “discretion” under § 973.046. There’s at least an argument that such an act violates an expectation of finality in sentence, and therefore violates double jeopardy. See, generally, State v. Willett, 2000 WI App 212, for overarching principles. The decision may leave these issues begging, but may well be treated as if it had indeed resolved them. If all else fails, you’re entitled to an indigency hearing, Kuechler, 2003 WI App 145, ¶14. |
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DNA Collection Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis 1996) Issue/Holding: Compulsory collection of DNA from imprisoned sex offenders (now ordered at sentencing under § 973.047 for anyone convicted of any felony, as implemented by Admin Code § JUS 9.04(3)) satisfies the fourth amendment: "Although the state's DNA testing of inmates is ultimately for a law enforcement goal, it seems to fit within the special needs analysis the Court has developed for drug testing and searches of probationers' homes, since it is not undertaken for the investigation of a specific crime." (Shelton has been explictly ratified by Green v. Berge, 7th Cir. 01-4080, 1/9/04. For discussion of that case, and of the fourth amendment issues involved in DNA collection form prisoners, see here) |
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| No Biological Specimen Ordered, No DNA surcharge Permitted |
| State v. Suzette M. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct. App. 1999). |
| For Ward: Patricia L. Arreazola. |
| Issue/Holding: Where the defendant is neither convicted of an automatically qualifying offense (§§
940.225,
948.02(1)&(2)) nor ordered to provide a biological specimen, the
§ 973.046 DNA surcharge may not be imposed. (Update: The statute has since been substantially changed; the current § 973.047 requires specimens and DNA analysis for all felons. The current § 973.046 permits imposition of the $250 DNA surcharge for any felony conviction, except that the surcharge is required for conviction under §§ 940.225, 948.02(1) or 948.025. See also entry on collecting DNA under §. 973.047.) |
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| Enhancer -- Allocation |
| State v. Kent Kleven, 2005 WI App 66 |
| For Kleven: Roberta A. Heckes |
Issue/Holding:
¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court's remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of the sentence. As the supreme court explained in State v. Upchurch, 101 Wis. 2d 329, 336, 305 N.W.2d 57 (1981), a sentencing proceeding is "not a game," in which "a misstatement by the trial judge would result in a windfall to the defendant." |
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Enhancers -- Applicability -- Underlying Crime Required --
Violation of Harassment Injunction (§ 813.125(4)) Subject to Enhancement State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02 For Sveum: Ian A.J. Pitz |
| Issue/Holding: A repeater enhancement applies only to a crime, which is an offense prohibited by state law and punishable by fine and/or imprisonment. Violation of harassment injunction fits this definition and therefore supports repeater enhancement. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993) (contempt doesn't support repeater enhancement), distinguished. ¶¶7-17. |
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| Enhancer – Collateral Attack – Transcript Missing from Enhancer Case, & Defendant’s Prima Facie Burden |
| State v. Joseph J. Hammill, 2006 WI App 128 |
| For Hammill: Patrick J. Stangl |
Issue/Holding:¶6 A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. … |
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| Enhancer – Collateral Attack – Challenge to OWI-1st |
| State v. Joseph J. Hammill, 2006 WI App 128 |
| For Hammill: Patrick J. Stangl |
Issue/Holding:¶15 Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day, with the Eau Claire conviction occurring first. Hammill asserts that the Village of Cameron charge was an OWI-second and that a municipal court does not have subject matter jurisdiction over a second or subsequent OWI charge, citing County of Walworth v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982). Hammill then contends that, because the court lacked subject matter jurisdiction, the conviction is a nullity and cannot be counted for penalty enhancement purposes in this case.Could Hammill have brought an independent challenge to his Village conviction under § 806.07(1)(d)? That might depend on 1) whether the judgment was “void” and if so 2) whether the § 806.07(2) “reasonable time” limitation for bringing the motion allows you to wait 12 years before challenging a void judgment. The answer to the latter question seems settled, see e.g., Neylan v. Vorwald, 124 Wis.2d 85, 100, 368 N.W.2d 648 (1985) (“Section 806.07(2), Stats., requiring motions to vacate orders or judgments to be brought in a "reasonable time" does not apply to void judgments.”). Let me quickly add the equivalent of a strongly worded consumer act warning: I haven’t shepardized the case or otherwise researched the point, so you will definitely want to do your own follow-up; sound advice any way, under any circumstances. The 1st question thus seems to be the decisive one—on the merits, someone with expertise in this area will have to weigh in; as a procedural matter, though, and assuming Neylan applies, it’s safe to say that if a challenge is to be made, it would have to be as an independent § 806.07 attack in the OWI-1st proceeding. Separate, tangential point: it might be worth recalling that the Hahn rule has similarly been applied to challenges to a prior refusal used as an enhancer, State v. Keith S. Krause, 2006 WI App 43, ¶12 (no right to counsel in refusal proceeding, therefore Hahn precludes collateral attack within enhanced proceeding). |
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| Enhancement – Collateral Attack: Prior Refusal, as OWI Enhancer |
| State v. Keith S. Krause, 2006 WI App 43 |
| For Krause: Roger G. Merry |
Issue/Holding:
Because collateral attack on a prior
conviction used as a sentencing enhancer is limited to denial of counsel, and
because the right to counsel does not attach to a civil proceeding, a refusal
revocation is not subject to collateral attack on its use as an OWI enhancer:
¶12 In an enhanced-penalty situation, a collateral attack on a prior conviction used for enhancement must be founded on a claim of actual or constructive denial of the constitutional right to counsel. See Hahn, 238 Wis. 2d 889, ¶17. However, because a refusal hearing is a civil proceeding, no constitutional right to counsel attaches. See Shoepp, 204 Wis. 2d at 272; Stroe, 256 F.3d at 500. Accordingly, Krause did not have a constitutional right to counsel upon which to base his collateral attack. We affirm the judgment of conviction and the order denying postconviction relief.The fact that a refusal is a civil proceeding might support lines of attack not available to the typical enhancer. Independent collateral attack is supported by § 806.07(1)(a), which in some ways is a more flexible remedy than § 974.06. You don’t for example have to be in custody, nor does your argument have to raise a constitutional or jurisdictional defect. On the other hand, there is a one year (or “reasonable time”) limitation. Krause did file a § 806.07 motion but came up against the time bar, ¶4. He then filed a § 974.06 motion which was denied on the basis that he hadn’t been denied counsel, ¶5. The motion could just as easily have been barred on the basis that Krause wasn’t in custody under the refusal revocation, though the court doesn’t say as much. For that matter, it ought to be recalled as a general proposition that if the attack involves denial of counsel the challenge can be made through the enhancement proceeding itself, where procedural bars arguably fall away. State v. David M. Hahn, 2000 WI 118, ¶28. But as Krause clarifies, there’s no merit to such an argument regardless of the forum, if the enhancer is a refusal. Still, if there’s some other basis for attack, § 806.07 would seem to be the vehicle. One other potential sticking point. OWI enhancement is based on the “prior conviction” rule; see, e.g., State v. Brandon J. Matke, 2005 WI App 4, ¶16 for explanation. But that rule is based on the idea that there was a prior conviction—which is to say, a finding of guilt at a proceeding at which the defendant had the rights to jury trial and proof beyond reasonable doubt. |
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| Enhancement – OWI Prior, Collateral Attack – Procedure |
| State v. Alan J. Ernst, 2005 WI 107, on certification |
| For Ernst: Jeffrey W. Jensen |
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Issue1:
Whether violation of the standards mandated
by
State v. Klessig, 211
Wis.
2d 194 ¶24, 564 N.W.2d 716 (1997) for valid waiver of
counsel supports a collateral attack on a prior conviction.
Holding1: ¶25 … For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she "did not know or understand the information which should have been provided" in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel. See Hampton, 274 Wis. 2d 379, ¶46 (citing Bangert, 131 Wis. 2d at 274-75). Any claim of a violation on a collateral attack that does not detail such facts will fail.Issue/Holding2: If the defendant does make a prima facie showing, then the procedures authorized by State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) apply: the burden shifts to the State to prove by clear and convincing evidence that waiver of counsel was knowing, intelligent and voluntary, ¶27; the defendant may be questioned at the ensuing evidentiary hearing, ¶¶30-31; any 5th amendment claim of privilege against testifying at such a hearing is waived by putting the matter of knowledge of rights at issue, ¶33; if the defendant refuses to testify, the trial court may draw an adverse inference, ¶35. |
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As a casual aside, the court asserts, ¶33: “To
make a prima facie showing a defendant is required to point to facts that
demonstrate that he or she did not knowingly, intelligently, and voluntarily
waive his or her constitutional right to counsel. An affidavit from the
defendant setting forth such facts would be necessary, in order to
establish a prima facie case.” Assuming that this is not a slip (and it
would be very unwise to make such an assumption), this requirement of an affidavit from defendant
substantially deviates from current pleading practice:
contrast this explicit requirement of an
affidavit,
with past indications that the
defendant need “merely allege he or she did not know or understand the
information that should have been provided at the plea hearing,”
State v. John A. Jipson, 2003 WI App 222, 2003 WI App 222,
¶7, 267 Wis. 2d 467, 671 N.W.2d 18, citing Bangert, 131 Wis. 2d at 268-69; and to like
effect, see generally, State v. Corey J.
Hampton, 2004 WI 107. The court currently has on its
calendar a Bangert
sufficiency-of-pleading case, 2003AP2662-CR, State v. James E. Brown, rev. gr. 6/1/05
– perhaps that case will provide some clarification. In the meantime,
though, you ignore ¶33 at your peril.
One additional point worth mentioning: can the State, under the guise of wide-open cross rule, examine the defendant on a range of incriminatory matters and then use that material at the ensuing trial? The court’s broadly stated waiver language is certainly worrisome if taken at face value. Fortunately, you don't have to take the language at face value, because § 901.04(4) explicitly limits the wide-open cross rule when the defendnat is testifying as to a "preliminary matter," as this surely is. And though it is therefore not necessary to go further, note as well the court’s express analogy to State ex rel. Goodchild v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965), and its recognition that “the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances” of the matter in controversy, ¶31 n. 10. Stress, of course, on “limited purpose,” which ought to be something of a counter-weight against the wide-open cross rule. |
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| Enhancers -- Collateral Attack on, at Sentencing -– Breach by Defendant of Plea Bargain Underlying Enhancer-Conviction |
| State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867 |
| For Deilke: Kelly J. McKnight> |
| Issue: Whether a defendant’s successful challenge to a prior plea-bargain based conviction that is being used as an enhancer in a current proceeding amounts to a breach of that prior plea bargain so as to allow reinstatement of charges dismissed under it. |
Holding1:
Substantial and material breach: ¶16 The State asserts that due to Deilke's breach, it did not receive the full benefit of the plea bargains because his successful attack eliminated a portion of the punishment for each conviction——the effect of the convictions on the statutory penalties available for subsequent OMVWI convictions. Deilke makes three arguments to counter the State's argument and to support the court of appeals decision: …Two points. First, the effect of a collateral attack on a repeater allegation is to vacate the prior conviction – something that was at least arguable but now is explicit. (“We conclude that the result of Deilke's successful collateral attack on the convictions was to invalidate the convictions.”) Second, it isn’t entirely clear whether this notion of defendant’s breach for attacking the prior conviction is limited to OWIs. Though the majority’s language is broad in some respects, it does focus narrowly on the peculiar characteristics of OWI, e.g., ¶20 (“part of Deilke's punishment was the effect of the statutory scheme regarding drunken driving penalties under Wis. Stat. § 346.65, which envisions progressive punishment as a central component of convictions”) and ¶21 (“In addition, the prosecutor is without the authority or power to bargain away the penalty-enhancing character of an OMVWI or PAC conviction”). With those comments in mind, it’s possible to see the organizing principle of the case in this light: a successful attack on an OWI / PAC plea-bargained repeater is a substantial and material breach of that plea as a matter of law. What about other contexts? It’s hard to imagine that this issue will come up much if at all outside the traffic context: attack on a repeater allegation is limited to denial of right to counsel, State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, ¶4, clarified on reconsideration, 2001 WI 6, and as a practical matter that’s something unlikely to be at issue outside of criminal traffic cases such as OWI and OAR. But that doesn’t mean you can’t have a sort of spill over effect – when, for example, OWI and non-OWI(s) are the subject of a common plea bargain, and then you raise a successful postconviction challenge to a plea-bargained OWI repeater; have you, in such an instance, breached that plea bargain as well as the prior one? That is probably a fact-specific question. Dielke does, as suggested, support the idea that the attack breaches the prior agreement, but it doesn’t suggest that the present agreement would necessarily be breached. All you can do is keep in mind the overarching principle: “¶14 A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party.” |
Holding2:
Remedy for breach¶26 In this case, the State requested reinstatement of the PAC charges against Deilke. The circuit court granted the motion and Deilke, with advice of counsel, pled to the PAC counts. The State did not request any additional jail time, fines or term of license revocation for these convictions, other than that which had been imposed at the time of the OMVWI convictions. However, the PAC convictions then served as the basis for the OMVWI-5th and PAC-5th charges that occurred in 2001. We conclude that the circuit court appropriately exercised its discretion when it rescinded the plea agreements and returned the parties to the positions they occupied at the time they believed they had entered into valid plea agreements.Deilke does not, under the circumstances, have a statute of limitations defense to the reinstated charges, because “Deilke’s pleas induced the State to refrain from prosecuting the PAC charges when they were originally filed,” ¶30. This seems to be an estoppel type of analysis, though the court doesn’t use that term. Instead, the court simply suggests that the SoL was tolled by Deilke’s plea agreement. |
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| Enhancers -- Collateral Attack on, at Sentencing State v. Thomas A. Drexler, 2003 WI App 169, PFR filed 8/1/03 For Drexler: Ralph A. Kalal Issue/Holding: In support of a collateral attack on a prior OWI conviction used to enhance a current OWI prosecution, Drexler submitted an affidavit asserting that the trial court had not advised him of his right to counsel: although this was enough to establish a prima facie case of denial of right to counsel, the state met it burden of knowing and intelligent waiver of counsel by producing a transcript of the prior proceeding which showed that the court did advise Drexler of his right to counsel. ¶¶7-11. (Note: The court expresses concern that the SCRs relating to record-retention create “a problem of statewide concern that should properly be addressed by the supreme court,” because “the State is placed in an untenable position under Baker if a defendant collaterally attacking a prior conviction can meet his or her burden of proof by simply filing an affidavit recounting his or her version of what occurred five, ten, twenty or twenty-five years earlier.” ¶11 n. 6.) |
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Enhancers -- Collateral Attack, as Part of Sentencing Proceeding -- "En Masse" Reading of Rights State v. Thomas M. Stockland, 2003 WI App 177 For Stockland: Ralph A. Kalal Issue/Holding1: The transcript of the prior proceeding did not itself show that defendant’s waiver of right to counsel was accompanied by explicit advice as to the dangers of self-representation. But it did show that rights were delivered “en masse” and this was sufficient to overcome the presumption of non-waiver: ¶14. The validity of Stockland's waiver of counsel must be examined under the law prevailing at the time which was explained by the supreme court in Pickens v. State, 96 Wis. 2d 549, 563-64, 292 N.W.2d 601 (1980), overruled by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997) ….Issue/Holding2: By referring to its rendition of rights earlier and having the defendant acknowledge that he understood those rights, the trial court established an adequate record of waiver: ¶22. Today, we take the logical step of adapting the Moederndorfer language to situations such as Stockland's where the court delivers rights to the defendant en masse. This reasoning flows from what we explicitly approved in Moederndorfer: Those colloquys that "specifically refer to some portion of the record or communication between defense counsel and defendant which affirmatively exhibits defendant's knowledge of the constitutional rights he will be waiving." Id. at 827 (emphasis and citation omitted).(Note: This is a bit too pat. In Moederndorfer, the rights were spelled out in a written form; at least everyone knew how they’d been expressed. Indeed, the court later made clear that it had simply approved a form, the colloquy being something else altogether. State v. Hansen, 168 Wis.2d 749, 755-56, 485 N.W.2d 74 (Ct. App. 1992): While our approval of the Moederndorfer form certainly lessened the extent and degree of the colloquy otherwise required between the trial court and the defendant, it was not intended to eliminate the need for the court to make a record demonstrating the defendant's understanding that the plea results in the waiver of the applicable constitutional rights. The record made in Moederndorfer is demonstrative. Although the personal colloquy there was also brief, it nonetheless established the defendant's understanding that, by entering the plea, he was giving up the rights detailed in the form. Moederndorfer, 141 Wis.2d at 828-29 n.1, 416 N.W.2d at 630. This is a subtle, but important, requirement.A subtle but important requirement apparently now forgotten. There was no form for Stockland, only a very generalized nod to unspecified “rights.” We know exactly what rights were spelled out and that Moederndorfer said he understood; we literally have no idea what rights were read “en masse” prior to Stockland’s plea, and we therefore have no idea what he did or didn’t understand. (Maybe there was something in this record that indicated the contents of the “en masse” rights, but the court of appeals doesn’t say as much.) Would that be sufficient for a “Moederndorfer form”? No, of course not – so why is Moederndorfer controlling? ) |
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| Enhancers -- Collateral Attack on, as Part of Sentencing Proceeding |
| State v. David M. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, clarified on reconsideration, 2001 WI 6, on certification. |
| For Hahn: Steven G. Bauer |
| Issue: "(W)hether the U.S. Constitution requires that an offender be permitted during an enhanced sentence proceeding predicated on a prior conviction to challenge the prior conviction as unconstitutional because the conviction was allegedly based on a guilty plea that was not knowing, intelligent, and voluntary." ¶3. Holding: ¶4. We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. We further conclude, as a matter of judicial administration, that an offender may not use the enhanced sentence proceeding predicated on a prior conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction. Because the defendant in the present case does not allege that a violation of his constitutional right to a lawyer occurred in the prior conviction, he may not challenge his 1994 conviction during this 1997 persistent repeater proceeding.Analysis: The court previously held that a prior conviction alleged as a sentencing enhancer could be challenged during the sentencing proceeding, as based on an unknowing, involuntary guilty plea; challenged, that is, without much restriction as to the nature of the asserted constitutional infirmity of the enhancer. State v. Baker, 169 Wis. 2d 49, 485 N.W.2d 237 (1992). The court now limits Baker, on the strength of Custis v. United States, 511 U.S. 485 (1994), to claims that the prior con |