APPEALS and POSTCONVICTION PROCEEDINGS

Updated 1/27/10
CONSTITUTIONAL BASIS (AND DUTIES OF APPOINTED COUNSEL)
PROCESSING APPEALS AND POSTCONVICTION MOTIONS
  • Briefs -- § 809.19, Briefs and Appendix
    • Appendix -- Composition
    • Argument -- Must be Supported by Authority
    • Citing Unpublished Opinions
    • Factual Recitation
    • Issue-Selection
    • Response / Reply Brief Failure to Address Argument
    • Vituperative Tone
  • Commencing / Notice of Appeal
    • CHIPS
    • Criminal
    • Cross-Appeal
    • Filing in County of Origin Rather than Assigned Judge's County
    • Finality of Order
    • Notice of Appeal
      • Contents
      • Faxed NOA
      • Unsigned NOA
    • Prison "Mailbox Rule"
    • TPR (by GAL)
    • Traffic
  • Counsel
    • Right to Choice of Counsel
  • Interlocutory Appeal
    • Bindover (by Court Commissioner)
    • Double Jeopardy Issue
    • Issue / Claim Preclusion as Basis
    • Timeliness
  • John Doe Review
  • No-Merit Report
  • Mootness
  • Ordinance Violation
  • PCM's
    • Collateral Attack, § 974.06 (Serial Litigation Bar)/ Interest of Justice
    • Defendant's Presence
    • Discovery (including DNA testing under § 974.07)
    • Evidentiary Hearing
    • Name Change, JOC
    • Reconsideration, Motion for
    • Reconstruction of Missing Record/Evidence
    • Relief from Judgment, § 806.07
    • Sealed File
    • Sentence Modification
  • Petition for Review
    • Expired deadline -- Extend by Habeas
    • Prison Mailbox Rule
  • Record on Appeal
  • Sanctions (see also Counsel -- Sanctions)
  • Supreme Court Review
    • Scope, on Certification
  • Voluntary Dismissal
  • Waiver of Right to Appeal
WAIVER OF ISSUE / PRESERVATION OF ARGUMENT
(Also see Evidence -- Objection)
  • Affirmance of Lower Court on Alternative Theory
  • Appeal -- Forfeited by Flight
  • Double Jeopardy / Multiplicity
  • Judicial Estoppel (see also Constitution -- Double Jeopardy -- Multiplicity -- Judicial Estoppel Bar)
  • Motion in Limine
    • Closing Argument
    • Contemporaneous Objection (Need for Obviated)
    • Evidence Introduced by Defendant after Unsuccessful MiL
  • Plea Bargain Breach
STANDARD OF REVIEW
HARMLESS ERROR


CONSTITUTIONAL BASIS (and DUTIES of APPOINTED COUNSEL)

Constitutional Nature of Right to Appeal
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶17      Article I, Section 21(1) of the Wisconsin Constitution and Wis. Stat. § 808.03(1) guarantee a person convicted of a crime in Wisconsin the right to appeal his or her conviction to the court of appeals. The United States Supreme Court has held that a person appealing his or her conviction has a Sixth Amendment right to counsel on the first appeal, Douglas v. California, 372 U.S. 353, 356-57 (1963), and that this right includes the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985). 
Minor quibble: the cited authorities don’t identify the source of the federal right to direct-appeal representation as the 6th amendment; rather, it’s an incident of 14th amendment due process and equal protection. (Because, in short, there is no right to an appeal guaranteed by the U.S. Constitution—however, so long as the state does provide for appeal as a  matter of right the indigent appellant is entitled to the same access to the right as solvent appellants). But there is no doubt that, as the court says, this right—however sourced—carries with it a guarantee of effective assistance. The only probable implication is that for appellate no less than trial representation effectiveness is measured generally under the familiar Strickland-based standards. As for the state-based right to appellate representation: it is immediately guaranteed under the Wisconsin Constitution, see generally State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”).
Constitutional Nature of Right to Appeal
State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, PFR filed 3/1/04
For Ford: James R. Troupis, State Bar Pro Bono Project
For Amicus (SPD): Marla Stephens, Director; Patricia K. Flood, First Asst.
Issue/Holding:
¶2 A person convicted in Wisconsin of committing a crime has a constitutionally guaranteed right to appeal his or her conviction to this court. WIS. CONST. art. I, § 21(1); State v. Perry, 136 Wis. 2d 92, 98, 401 N.W.2d 748 (1987). The right to an appeal includes the right that “the appeal be a meaningful one.” Id. at 99. An indigent defendant is constitutionally entitled to the appointment of counsel at public expense for the purpose of prosecuting his or her “one and only appeal ... as of right” from a criminal conviction. Douglas v. California, 372 U.S. 353, 357-58 (1963); State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 648, 579 N.W.2d 698 (1998).1 The State Public Defender (SPD) contends, and no party disputes, that criminal defendants in Wisconsin also enjoy a state constitutional right to represent themselves on appeal if they knowingly and voluntarily make that choice and are competent to do so. It cites WIS. CONST. art. I, § 21(2), as the source of this right and our opinion in Havlinka v. Blunt, Ellis, & Loewi Inc., 174 Wis. 2d 381, 394-95, 497 N.W.2d 756 (Ct. App. 1993) as supporting it.
1 The right of an indigent defendant to have counsel provided at public expense for purposes of a first appeal as of right from a state criminal conviction appears to be grounded in the due process clause of the Fourteenth Amendment, rather than in the Sixth Amendment, which applies to “criminal prosecutions.” See Douglas v. California, 372 U.S. 353, 357-58 (1963); but see McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 436 (1988) (“If a convicted defendant elects to appeal, he retains the Sixth Amendment right to representation by competent counsel ....”).
(The court goes on to provide a useful summary of appointed counsel’s duties, which should be reviewed closely, ¶¶3-5.)

PROCESSING APPEALS and POSTCONVICTION MOTIONS

Processing Appeals -- Briefs -- § 809.19, Briefs and Appendix

"In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. Hence we have briefing rules," N/S Corp. v. Liberty Mutual Insurance, 127 F.3d 1145, 1146 (9th Cir. 1997)
Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance
S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09
Issue/Holding: ¶5 n. 1:
We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by Wis. Stat. Rule 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.
Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance
Werner v. Hendry, 2009 WI App 103, PFR filed 7/17/09
Issue/Holding:
¶11      As a final matter, we observe that the appellant’s appendix fails to include the trial court’s reasoning. It is essential that the appendix include the record items truly relevant and essential to understanding the issues raised, particularly the trial court’s oral ruling. State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367. Counsel for the appellant is sanctioned $150 for providing a false appendix certification and providing a deficient appendix. Id., ¶25. Counsel shall pay $150 to the clerk of this court within thirty days of the release of this opinion.
Just a friendly reminder to anyone filing an appellate brief: the court expects you to provide an adequate appendix, and it also takes the certification process very seriously. By the way, the court also dismissed Werner’s appeal on jurisdictional grounds, due to an untimely notice of appeal; the fine is insult added to injury.
Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance
State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
For Bons: Vladimir M. Gorokhovsky
Issue/Holding:
¶23      Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know. A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant. A notice of motion and motion to suppress and the notice of intent to pursue postconviction relief are meaningless to the discussion of the issues at bar. Here, the trial court provided extensive oral decisions on the issue of whether Ramstack properly detained Bons and the question of whether Bons voluntarily consented to the searches of his vehicle or trunk. Both of these oral decisions were “essential to an understanding of the issues raised.” Neither were in the appendix. Yet, Gorokhovsky certified that the essential items were in his appendix. They were not. Therefore, his certification is false. In fact, no items essential to our understanding of the issues were in his appendix.

¶24      Filing a false certification with this court is a serious infraction not only of the rule, but it also violates SCR 20:3:3(a) (2006). This rule provides, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.” By attesting that he complied with the appendix rules when he did not, Gorokhovsky made such a false statement.

¶25      Gorokhovsky’s deficient appendix placed an unwarranted burden on this court. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. § 809.83(2) (2005-06). Accordingly, we sanction Gorokhovsky and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion.

Judge Brown’s concurrence (¶¶26-30) both stresses the importance of a complete Appendix and laments the current tendency to burden the court with “worthless” Appendices. The certification requirement is meant to improve this practice and, in the event you missed the point of raking the unfortunate Mr. Gorokhovsky over the coals: “It is time that the rule was enforced.” Indeed, the underlying search and seizure issue seems to be so utterly mundane that the only purpose of publication is to drive home the need for more complete Appendices. In this respect, it’s probably not irrelevant that the same sort of transgression also resulted in a $150 fine, but in an unpublished opinion, State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06. And lest you think this is a merely parochial concern, you might want to take a look at U.S. v. White, 472 F3d 458 (7th Cir 2006) (order to show cause why counsel should not be fined $1000 for same sort of violation—yep, that’s one more digit than our COA thought necessary for condign punishment; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules).
Briefs -- Appendix -- Composition
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: ¶8 n. 4:
The State moves to strike Williams' appendix to his brief. It asserts that the inclusion of excerpts from the BNA Criminal Practice Guide and copies of articles pertaining to drug analysis and crime labs are outside the scope of what is permissible in an appendix. Wisconsin Stat. § (Rule) 809.19(2) indicates that an appellant's brief "shall include a short appendix providing" certain enumerated items.

The State's position assumes that these enumerated items are to the exclusion of all others. We decline to give the rule such a restrictive interpretation. The Judicial Council Committee's Note to § (Rule) 809.19 provides that an appendix "is designed to be nothing more than a useful tool to the members of the court." Members of the court on occasion find materials such as those at issue here to be of some assistance. We note that Williams' appendix contains "portions of the record essential to an understanding of the issues raised" as required by the rule. Accordingly, we deny the motion to strike.

Nonetheless, we take this opportunity to remind litigants that the rule calls for a "short" appendix. It is the rare case where a lengthy appendix is more boon than bane.

"Nothing more than a useful tool ...." But isn't it better to give the court a useful tool than to make the court go out and look for it? Moreover, § 809.19(2) explicitly requires certain items, most prominently the lower court's ruling. The 7th Circuit, finding omission of similarly required material extremely disconcerting, explains why this material is required, A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004):
... We have repeatedly emphasized the importance of compliance with Circuit Rule 30. In United States v. Rogers, 270 F.3d 1076 (7th Cir. 2001), we said:
Compliance with Circuit Rule 30 is essential to proper performance of the appellate task, especially by those members of this court whose chambers are outside Chicago and who lack instant access to the record. Even judges with chambers in Chicago often prepare for oral argument at home or elsewhere and need the district judge’s reasons ready to hand.
270 F.3d at 1085.
It is certainly wise to keep in mind the reason for the court's ire, explicitly articulated above: omitting the materials required by the rules makes the judges' work unnecessarily difficult. Why irritate an appellate judge for no good reason? Turns out you've got an economic interest at stake, too, see, e.g., State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06 (unpublished opinion, imposing $150 sanction against counsel for failing to include Appendix materials required by rule, and criticizing counsel for signing a false certification); and U.S. v. White, 7th Cir No. 06-1769, 12/19/06 (order to show cause why counsel should not be fined $1000 for same sort of violation; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules).

UPDATE: See also Petition No. 04-11 ("As the number of appeals has increased, the court’s reliance on appendices during the decision-making process has increased. The Court of Appeals requests that WIS. STAT. RULE 809.19(2)(a) be created to require that appellant’s counsel certify compliance with WIS. STAT. RULE 809.19(2) that requires an appellant’s brief include an appendix and sets forth the contents of the appendix."). The petition was subsequently granted, and § 809.19(2)(b) now requires certification by counsel.

Briefs -- Argument -- Pinpoint Citations for Cited Caselaw
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: ¶6 n. 4:
We observe that Kliss, in his appellate brief, is inconsistent in his use of pinpoint citations for the case law he invokes to support his legal contentions. Wisconsin Stat. Rule 809.19(1)(e) requires the appellant to support its contentions with citations conforming to the Uniform System of Citation and Supreme Court Rule 80.02. A citation to a specific legal principle from case law shall include a reference to the page number, or paragraph number if a public domain citation is available, where the legal principle may be found. SCR 80.02(3). The rules of appellate practice are designed in part to facilitate the work of the court and such intermittent compliance with the rules improperly burdens the appellate court.
Briefs -- Argument -- Concession of Error by State
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
For Johnson: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶14      … The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle. [4]
 [4]  The dissent faults the State for making this concession. Dissent, ¶60 n.2. It also takes Johnson to task for not raising the issue of whether his consent was voluntarily given. Id. It asserts that, due to the State's concession, this court "must raise and decide the issue of consent to search Johnson's vehicle with no assistance to this court from either party." Id.
We note, however, that an attorney has an ethical obligation not to make arguments before the tribunal that the attorney believes to be frivolous. Compare SCR 20:3.1(a) with Wis.  Stat. § (Rule) 802.05. Cf. State v. Parent, 2006 WI 132, ¶19, ___Wis. 2d ___, 725 N.W.2d 915. Thus, even when a concession of law is not accepted by a court, a prosecutor should be commended, not condemned, for exercising careful judgment and attempting to conform to our rules. Of course, a concession of law does not bind the court. The court determines the law, not the parties. Bergmann v. McCaughtry, 211 Wis.  2d 1, 7, 564 N.W.2d 712 (1997). …
A somewhat obscure but non-controversial matter: the reviewing court isn’t bound by a State’s concession of error in a criminal case but must instead conduct its own, independent review of the issue. Civil appeals are handled differently, of course, a concession by a party being the end of it; c’est la guerre (or is it, vive la difference?). The twist here is the majority’s assertion that the dissent “takes Johnson to task” not himself raising the State-conceded issue. It would be troubling, indeed, if any Justice undertook to criticize defense counsel for, in effect, failing to sua sponte raise a seemingly uncontroverted issue. But the majority does seem to have overstated the dissent’s criticism—rather, the dissent seems to be saying only that the absence of adversarial argument doesn’t bar the court’s review. And as noted, this is not a controversial position. It ought to be stressed that the particular issue (consent to search) was raised in the trial court, so the record was fully developed on the point; otherwise, quite different concerns relating to State waiver and denial of the defense right to a full and fair suppression hearing probably would have barred review.
Briefs -- Argument -- Must Be Supported by Authority
State v. Mary Boyer, 198 Wis. 2d 837, 543 N.W. 562 (Ct. App. 1995):
In an “argument” presented in one sentence, the defendants assert, without citation to authority, that if § 161.47, STATS., does not apply to them, “there is an equal protection under the law problem that will arise.” Arguments in appellate briefs must be supported by authority, RULE 809.19(1)(e) & (3)(a), STATS., and we need not consider arguments that do not comply, see State v. Pettit, 171 Wis. 2d 627, 646-647, 492 N.W.2d 633, 642 (Ct. App. 1992) (appellate court may decline to address issues that are inadequately briefed; arguments that are not supported by legal authority will not be considered). We thus do not address any alleged equal-protection issue.
Waiver by inadequate argumentation is (or should be) a two-way street, and for a forceful statement in holding the government's feet to the same fire, see U.S. v. Rodriguez-Marrero, 1st Cir. No. 01-1647, 11/5/04:
This rule, though most commonly applied to defendant-appellants, may be "applie[d] with undiminished vigor when, as now, a prosecutor attempts to rely on fleeting references to unsubstantiated conclusions in lieu of structured argumentation." Caraballo-Cruz, 52 F.3d at 393. Although in certain circumstances we have the discretion to overlook waiver by inadequate argument by the government in a criminal case, see United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997) (court of appeals has discretion to overlook government's waiver of harmless error argument), it would be inappropriate in this case to make the government's argument for it on an issue both factually and legally complex.
Briefs – Citing Unpublished Opinion
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding:
¶21      … Further, appellate counsel cited an unpublished case in her opening brief, contrary to Wis. Stat. Rule 809.23(3). This does not appear to be inadvertent, since the citation ends with the parenthetical “(unpublished).” Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Tamminen v. Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 563, 327 N.W.2d 55 (1982). Unless and until the nonpublication rule is changed, violations of this rule will not be tolerated. See id. We therefore impose a $50 fine on Milanes’ appellate counsel and direct the sum to be paid to the clerk of this court within twenty days of the date this opinion is released.
Briefs -- Citing Unpublished Decisions – Generally
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue/Holding: ¶18 n. 6:

This court is not so naïve as to believe that unpublished opinions, whether one-judge opinions, per curiam opinions or authored opinions sit in a file serving as dinner for book lice. [A tiny, soft-bodied wingless psocoptera, that actually feeds on molds and other organic matter found in ill-maintained works. See http://www.earthlife.net/insects/psocopta.html, last visited June 29, 2006 .] The ingenious methods members of the bench and bar employ to use unpublished opinions is well known to this court. …

The bench and bar must be guarded in their use of unpublished opinions because of the role of the Wisconsin Court of Appeals. …

Because an unpublished opinion is intended to be a one-time explanation to a limited audience, it will generally say almost nothing about the facts, because its intended audience—the parties and the lower court—are already familiar with the facts. Schiltz, supra, at 33. An appellate court’s holding cannot be understood outside of the factual context; without knowing the facts it is difficult to discern what an unpublished opinion actually held and easy for attorneys and judges to be misled. Id.

In rejecting the State Bar of Wisconsin’s petition to amend Wis. Stat. Rule 809.23 to permit citation to unpublished opinions for persuasive and informational purposes, our Supreme Court observed:

The court is also cognizant of the potential for unintended abuse inherent in the citation of unpublished appellate opinions for purposes other than those currently permitted. Trial courts and appellate courts might unwittingly give unpublished opinions more weight than that to which they are entitled, merely because they express the reasoning of an appellate tribunal on the same or similar issue. Moreover, courts might inadvertently give the appearance of improperly having relied on unpublished opinions as precedent for their holdings on the same issue. Erosion of the concept of precedent embodied in published decisional law is too great a price to pay for the sake of informing or persuading a court by means of opinions not designed for citation.
In re Amendment of Section (Rule) 809.23(3), 155 Wis. 2d 832, 834-35, 456 N.W.2d 783 (1990).

We recommend to the bench and bar that, if they insist on embracing the rationale of an unpublished opinion, they use the opinion as a starting line and not the finish line for their own independent research. Not only should they confirm that the authorities cited actually support the legal propositions in the unpublished opinion, they also should make sure that the authorities continue to represent a correct statement of the law. A member of the bench or bar who fails to independently develop his or her own legal rationale does so at his or her own peril.

A very lengthy footnote. Hard to know quite what to make of it. It’s obviously not an endorsement of ignoring the no-cite rule, but there does seem to be a sort of weary acceptance that bench and bar both will find ingenious methods to get around it.

UPDATE: The supreme court struck a portion of the above footnote (discussing an unpublished opinion), but left the above passages intact, 2008 WI 64:

¶5 … Can the court of appeals analyze——and effectively overrule——a decision that wholly lacks either precedential or persuasive authority, as a matter of law? Certainly, the court's analysis explains why the court of appeals overruled the circuit court's ruling. But, in so doing, the court implicitly acknowledges that the Westfield decision, albeit unpublished, does indeed have persuasive authority. This court is fully aware that appellate courts and lawyers alike look to unpublished decisions to bolster legal arguments and to ensure consistency in outcome. However, our current rules do not sanction this practice. Thus, we direct the court of appeals to strike the following language from footnote 6 ….
The court goes on to note:
¶7 There has been considerable debate at the state and national levels about rules prohibiting citation to unpublished decisions. The Wisconsin Judicial Council has filed a rule petition with this court regarding citation to unpublished decisions and the matter will be set for a public hearing in due course.[2] …
Briefs-- Citing Unnpublished Opinions
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding: Citation to an unpublished 7th Circuit case is proper, ¶18 n. 6:
Wisconsin Stat. Rule 809.23(3) does not prohibit us from citing unpublished opinions from other jurisdictions. Predick v. O'Connor, 2003 WI App 46, ¶12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1, review denied, 2003 WI 32, 260 Wis. 2d 753, 661 N.W.2d 101 (Wis. Apr. 22, 2003) (Nos. 02-0503, 02-0504), cert denied, 124 S. Ct. 809 (U.S. Wis. Dec. 1, 2003) (No. 03-429). And the Seventh Circuit's rule on citation of its unpublished opinions only prohibits citation of an “unpublished opinion” as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive value. State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n.6, 246 Wis. 2d 814, 632 N.W.2d 878.
Just so we’re perfectly clear: the way the court of appeals interprets Rule 809.23(3), the only unpublished decisions it can’t look at are its own. Circuit court rulings, administrative decisions, unpublished opinions from every other jurisdiction in the world, but if you cite the court of appeals’ own unpublished output you will have to open your wallet even as your audience closes its ears, State v. John S. Cooper, 2003 WI App 227, ¶¶23-26. Whether or not you philosophically support a no-cite rule, the administration of this one puts the rule in serious need of overhaul.
Briefs-- Citing Unnpublished Opinions
State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall
Issue/Holding:
¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper's appellate brief. The Rules of Appellate Procedure proscribe as follows:
Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.
Wis. Stat. Rule 809.23(3) (2001-02).

¶24. Cooper's appellate counsel attempts to minimize his culpability by locating such citations in footnotes and providing the disclaimer that citations to unpublished decisions are “for information and illustrative purposes only.” His use of the unpublished opinions to support his argument, however, reveals his intent to persuade this court with the improper citations.

¶25. When faced with such a blatant disregard for the Rules of Appellate Procedure in the past, this court has not hesitated to impose consequences. While "[w]e sometimes (perhaps too often) make allowances for appellate counsel's failure to abide by these rules ... [t]here are limits beyond which we cannot go in overlooking these kinds of failings." State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Cooper's appellate counsel has exceeded those limits.

¶26. We hereby impose a fine of $50 for each violation of Wis. Stat. Rule 809.23(3) (2001-02). We count nine citations to unpublished opinions in the appellant's brief, for a total fine of $450.

Well. The court is obviously in high dudgeon over “such a blatant disregard for the” rules as to remind the court of what it has previously said. Make no mistake: this is a send-a-message fine, given both the accompanying rhetoric and the sheer amount. Cite an unpublished case and you can expect a sanction. Even so, a fine for citing unpublished cases is one thing; imposing a fine for each such cite is something else. Cite two unpublished cases and it’s like speeding in a work zone. The court’s ire is simply impossible to fathom.

In the first place, the court of appeals isn’t always fastidious about enforcing the no-cite rule. Indeed, the court very recently let counsel off the hook with mere admonishment after counsel not merely cited an unpublished case but didn’t even reveal that it was unpublished. LaCrosse Co. v. Stacy C., 02-1620, 12 n. 4, the court noting that “there is currently a motion before the supreme court to change this rule”; but at the same time cautioning that “the current rule as quoted above is the only operative rule[;] (i)t must be observed by counsel.” The effort to change the rule was subsequently rejected, by order dated 7/1/03. 2003 WI 84. But that effort was no less pending at the time Cooper’s brief was written – which makes singling out its transgression unfair, at least in appearance.

Consider, too, the narrow reach of the no-cite rule, as construed by the court itself – you can cite non-precedential trial court decisions, Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), unpublished cases from other states, Predick v. O'Connor, 2003 WI App 46, ¶12 n. 7, and unpublished federal decisions, State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n. 6. So, about the only thing you can’t do is inform the court of what it has itself said. Why, then, a draconian fine for violating a rule that serves little purpose? Perhaps it’s precisely because the rule serves no obviously useful purpose; excessive sanction is the best last defense in favor of a crumbling policy.

Finally, there are good-faith challenges that might be made to the rule. One federal court has held that a similar rule violates Art. III, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), though that panel decision was subsequently dismissed on en banc review because the underlying appeal was moot, 235 F.3d 1054. (Wis. Const. Art. VII, § 2 tracks Art. III language, so the same argument could be made under the Wis. Const.) Another court disagrees, Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), but that doesn’t make a challenge to R. 809.23 any less in good faith. There’s a good discussion in this law review article: “SEPARATION OF POWERS AND THE HORIZONTAL FORCE OF PRECEDENT,” 78 Notre Dame L. Rev. 1075 (2003). And for an “angle” that, according to the author, “has not yet been closely examined by courts or commentators,” namely “that no-citation rules, which forbid all citation to unpublished opinions, tread upon the First Amendment rights of attorneys, and by extension, their clients,” see: NOTE: NO-CITATION RULES AS A PRIOR RESTRAINT ON ATTORNEY SPEECH, 103 Col. L. Rev. 1202 (2003).) (UPDATE: Efforts to create a uniform federal rule, allowing citation of unpublished opinions, has generated a good deal of controversy. See, generally, this site. For vigorous arguments in favor of the no-cite position, see these letters by Judge Kozinski and a majority of 7th Circuit judges. But for a concise but thoughtful view opposing the Kozinski position, go here. And for a scholarly analysis, "NO-CITATION RULES UNDER SIEGE: A BATTLEFIELD REPORT AND ANALYSIS," go here. What this all shows is that this controvesry isn't likely to go away antyime soon.

For a comprehensive discussion of what is, and is not, permissible, see Mia Sefarbi & Kira Zaproski, "Citing Unpublished Opinions in Wisconsin State and Federal Tribunals," Nov. 2004 Wis. Lawyer, p. 14.

Detailed discussion in law review article, J. Lyn Entrikin Goering, Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 2005 Seton Hall Circuit Review No. 1 (The title is self-descriptive; from the article's introduction: "The premise of the article is that nonuniform circuit rules restricting attorneys from citing the great majority of federal appellate opinions undermine the integrity of our judicial system by greatly diminishing the predictability of circuit court decisions.").

Briefs -- Citing Unpublished Opinion
Predick v. O'Connor, 2003 WI App 46
Issue/Holding: ¶12 n. 7:
We note that in this opinion we do cite to two unpublished opinions from other states. Wisconsin Stat. § 809.23(3) does not prohibit us from doing so. In Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), we held that the rule does not proscribe citation to circuit court decisions, noting "the statutory scenario of chapter 809 concerns appellate procedure generally and ... Rule 809.23(3), read in context, concerns only court of appeals decisions." Brandt, 160 Wis.2d at 363.
Though these comments refer to the court's authority to cite unpublished decisions, it is obvious that the same logic would apply to citations made by the litigant; the ban on citing unpublished opinions, Rule 809.23(3), simply doesn't distinguish between court and counsel. And, in a case discussed immediately below, the court reads into the rule authority to cite unpublished federal authority. The net effect, then, is that you can cite virtually any unpublished case originating anywhere -- including a Wisconsin trial court decision -- other than a case issued by the Wisconsin court of appeals itself, the very court that's hearing the appeal. Whatever the theoretical merits of the no-cite rule, even its most enthusiastic proponents would have to acknowledge that this is a strange state of affairs.
Briefs -- Citing Unpublished Opinion
State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163
Issue: Whether an unpublished decision may be cited for its "persuasive" value.
Holding: ¶7 n. 6:
We acknowledge that the cited order from the Seventh Circuit is an 'unpublished opinion.' However, the Seventh Circuit's rule only prohibits citation of an 'unpublished opinion' as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive interpretation of Wisconsin law. Leverence v. U.S. Fid. & Guar., 158 Wis. 2d 64, 91, 462 N.W.2d 218 (Ct. App. 1990).
(Note: Rule 809.23(3) precludes citation "as precedent or authority" of any unpublished opinion. Federal cases aren't binding on Wisconsin state law in any event, but as Leverance itself recognizes, they can have "persuasive authority." So, by citing an unpublished case for the very purpose the rule expressly prohibits -- citation "as precedent or authority" -- this decision for all practical purposes abrogates the rule. Why can't you now cite an unpublished Wisconsin case as authority "for its persuasive interpretation of Wisconsin law"? To be sure, you can't: you will run a severe risk of fine and/or public rebuke. But it is very to justify the distinction between foreign and Wisconsin unpublished cases, given that the rule itslef makes no such textual distinction.)
Briefs -- Factual Recitation -- Need for Completeness, Accuracy
State v. Ellen T. Straehler, 2008 WI App 14
For Straehler: Daniel P. Fay
Issue/Holding: ¶2 n. 4:
We appreciate the attorney general’s thorough recitation of the facts and draw freely from it. Both the district attorney and the attorney general submitted response briefs and we refer to their position collectively as the State’s. Straehler’s recitation of facts is incomplete, lacks citation to the record and cites to documents outside of the record. Such failure is a clear violation of Wis. Stat. Rule 809.19(1)(d) of the rules of appellate procedure, which requires the appellant to set out facts “relevant to the issues presented for review, with appropriate references to the record.” An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Weiland v. Paulin, 2002 WI App 311, ¶11, 259 Wis. 2d 139, 655 N.W.2d 204, reversed on other grounds, 2003 WI 27, 260 Wis. 2d 277, 659 N.W.2d 204. This court is not required to sift through the record for facts. Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 324, 129 N.W.2d 321 (1964).
Briefs -- Factual Assertions -- Need for Accuracy
Arents v. ANR Pipeline Co., 2005 WI App 61
Issue/Holding: ¶5 n. 2:
Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case. “[F]acts must be stated with absolute, uncompromising accuracy. They should never be overstated — or understated, or ‘fudged’ in — any manner.” Judge William Eich, Writing the Persuasive Brief, Wisconsin Lawyer Magazine, Vol. 76, No. 2 (Feb. 2003). The fact section of a brief is no place for argument.

Furthermore, in its cross-appeal, ANR’s fact section contains few citations to the record and, for the most part, cites only to its own appendix. This is also improper. Such failure is a violation of Wis. Stat. Rule 809.19(1)(d) and (3) (2001-02) of the Rules of Appellate Procedure which requires parties to set out facts “relevant to the issues presented for review, with appropriate references to the record.” (Emphasis added.)

Briefs – Issue-Selection, Generally
S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09
Issue/Holding: ¶5 n. 1:
Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.
Right time, right place, a bear may hold your rapt attention; the court just wants you to know that it has no intention of providing fodder for your entertainment. (Case Summaries isn’t similarly constrained.) The lesson: in the appellate world less is typically more. Or, if you prefer sports metaphors, “Addition by subtraction.” We would be remiss if we didn’t mention that Justice Hansen’s phrase is “now familiar” precisely because his aphoristic style is timeless.
Briefs - Response Brief Failure to Address Argument, as Implicit Concession
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: Failure of a response brief to dispute a proposition in appellant’s brief may be taken as implicit concession of the proposition, ¶6 n. 3.
Briefs: Failure of Reply Brief to Respond to Argument
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
For Dyanne M.: Phillip J. Brehm
Issue/Holding: Reply brief failure to address argument raised in response brief may be deemed conceded for purposes of appeal, ¶23 n. 7, citing Hoffman v. Economy Preferred Ins. Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (Ct. App. 1999).
Briefs -- Reply Brief Failure to Address Argument
State v. Dale H. Chu, 2002 WI App 98
For Chu: Andrew Shaw, Rex R. Anderegg
Issue/Holding:
¶41. In his reply brief, Chu offers no response to the State's argument concerning information about Wales. Unrefuted arguments are deemed admitted. See Charolais Breeding Ranches v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Accordingly, we reject his argument without further discussion.
Briefs -- Content -- Tone: Ad Hominem
Bettendorf v. St. Croix County, 2008 WI App 97
Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:
¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present evidence and argument so that the cause may be decided according to law…. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” [3] Comment, SCR 20:3.5 (2005-06). Given corporation counsel’s unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.
 [3] We thus appreciate Bettendorf’s attorney’s professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks.
An object lesson in the dangers of brief-writing as therapy—ventilating, in a word. The court quotes some (or is it all? the court doesn’t say) of the offending language: ¶¶15-16. Sophomoric? No doubt. Personal? Well, use of the personal pronoun “I” is a bit of a giveaway. Clearly, the rhetoric is both gratuitous and self-defeating. (Remember, respondent made the offensive argument; the appeal, without getting into the details, seems quite frivolous and perhaps the appellant would have been sanctioned had it not been for the distraction caused by respondent’s tone.) Let’s agree, then, that respondent’s approach is one an effective advocate should always avoid, at all costs. But just why was it unethical rather than merely ineffectual? For exhibiting what the court oddly characterizes as “unwarranted belligerence”? The characterization suggests, by the way, that warranted “belligerence” is within bounds. And if that is so, then why wasn’t counsel’s belligerence warranted by the mere fact of a patently frivolous appeal?

There is, to be sure, no doubt that sufficiently aggravated and personal attacks on opposing counsel run afoul of ethical rules, e.g., U.S. Bank National v. City of Milwaukee, 2003 WI App 220, fn. 4; see also, Matter of Abbott, 925 A.2d 482 (Del. 2007). But where the line is drawn remains to be seen, nor does the court quite get around to saying. Perhaps a boundary can’t be set. At a minimum, then, it’s best to avoid ascribing motive to your opponent, as counsel apparently did here (accusing appellant of pursuing “excessive” “self-interest”).

Briefs -- Content -- "Overly Tendentious" Tone, Lack of Civility
U.S. Bank National v. City of Milwaukee, 2003 WI App 220
Issue/Holding: fn. 4:
The brief submitted to us by the City of Milwaukee is overly tendentious and lacks the civility that lawyers owe to both their adversaries and to the courts. The following has no place in a brief before any court in this state: accusing an opposing party of seeking "political anarchy" ... of "creating a `sideshow,'" ... of advancing "crazy arguments" that "are ludicrous," ... characterizing an opponent's arguments as "hogwash" ... characterizing an opponent's argument as "ridiculous," ... and characterizing an opponent's argument as "crazy[.]"

In our view, these comments violate SCR 62.02(1)(a), because they do not reflect a "cordial and respectful demeanor"; SCR 62.02(1)(b), because they are not "civil"; SCR 62.02(1)(c), because they are "disparaging, demeaning [and] sarcastic"; and SCR 62.02(1)(d), because they are "uncivil, abrasive, abusive, hostile, [and] obstructive." We have previously warned appellate lawyers for the City, although not current counsel, that hyperbole is "unworthy of government lawyers." Milwaukee Police Ass'n v. City of Milwaukee, 2002 WI App 43, ¶13 n.3, 250 Wis. 2d 676, 688 n.3, 641 N.W.2d 709, 715 n.3. It is unworthy of all lawyers. See Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 509, 583 N.W.2d 849, 856 (Ct. App. 1998) ("Civility is one aspect of professionalism that all attorneys should strive for.")

Is it necessary to add that circumspection is expected when criticizing judicial decisions? See, e.g., Peters v. Pine Meadow Ranch, 2007 UT 2, ¶¶7, 8 ("But to argue that a court has committed an error is one thing; to argue that a court has intentionally committed that error due to an improper motive is quite another. ... To make bald and unfounded accusations of judicial impropriety in briefs filed with this court ... has overstepped the bounds of appropriate appellate advocacy."); In the Matter of Wilkins, 777 N.E.2d 714 (Ind. 2002) (suspending counsel, where "not even colorably appropriate" comments in brief "suggested that the judges on the Court of Appeals may have been motivated in their decision making by something other than the proper administration of justice, and, in fact, suggested unethical motivations. We find that his comments in footnote 2 violated Prof.Cond.R. 8.2(a) because they were made with reckless disregard as to the truth or falsity concerning the integrity of a three-judge panel of the Court of Appeals. ... A statement used in a document filed before the appellate courts that contains an assertion the lawyer knows to be false or made with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge is neither a “format” contemplated by our appellate rules nor allowed by our Rules of Professional Conduct." -- the court subsequently reduced the penalty to a reprimand, on the basis the the offensive conduct had been mitigated by sufficient remorse, 782 N.E.2d 985).
Briefs -- Content -- "Vituperative Tone"
Mogged v. Mogged, 2000 WI App 39, 233 Wis. 2d 90, 607 N.W.2d 662
Issue/Holding: Brief adopting "vituperative tone" and making misleading, unsupported arguments violates Rules of Professional Conduct and is stricken. ¶¶21-24. (Note that the court cites 7th Circuit caselaw, ¶22, suggesting that decisions from that body are very pertinent.)
Appellate briefs containing personal attacks sufficiently inflammatory subject the author to the range of sanctions avaialble under the code of professional responsibility, see, e.g., Matter of Abbott, 925 A.2d 482 (Del. 2007).

Processing Appeals -- Commencing

Reconfinement After Revocation of Extended Supervision -- Review under § 809.30
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶4 The question presented by this appeal is whether persons sentenced to a bifurcated term of imprisonment whose extended supervision is revoked may seek relief under WIS. STAT. RULE 809.30 from the trial court’s reconfinement order. We hold that they may.
Review of reconfinement has been a sticking point for some time, in Milwaukee anyway. If all you need or want to know is how to process review of ES revocation, here’s a quick summary:

We live in a bifurcated world; revocation and reconfinement are separate events, separately challenged.

When DOC obtains ES revocation, the person is returned to the trial court to determine reconfinement time. If ES revocation has been contested, then a hearing will have been conducted by DHA (DOA) and review of the revocation is by certiorari. See ¶6 n. 6.

Where revocation has been waived, the revoking authority is DOC; the court of appeals observes, id., that waiver “will rarely, if ever” result in “judicial review of whether revocation was warranted.” (Not to make this unnecessary complex, but it’s hard to imagine certiorari ever being the vehicle for challenging revocation waiver, because you’re limited to the record of waiver; you’ll necessarily have to raise a collateral – extra-record – challenge to waiver and habeas would be the mechanism.)

Review of reconfinement (as distinct from revocation itself) is by notice of intent under Rule 809.30, ¶¶4, 23. It’s really not any different from revocation of probation on a withheld sentence – you’d review the revocation by certiorari, and the sentence after revocation by notice of intent.

Finality of Order – Trial Court’s Inherent Authority to Reconsider Non-Final Order
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Issue/Holding: Trial courts possess inherent authority to reconsider any non-final ruling prior to entry of final order or judgment, ¶13, citing State v. Williams, 2005 WI App 221, ¶17, 287 Wis. 2d 748, 706 N.W.2d 355.
The trial court reconsidered its own prior sua sponte vacatur of a guilty plea. As the court of appeals holds elsewhere (¶12), the trial court lacks that sua sponte power. However, that is a mere detail with respect to reconsideration – for further discussion, scroll down this page, to commentary under summary of Williams, 2005 WI App 221.
CHIPS Appeal -- Commenced by NOI.
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant; James L. Boardman; Chris R. Velnetske
Issue: Whether the court of appeals acquires jurisdiction over a CHIPS appeal commenced by notice of appeal without prior notice of intent to pursue relief.
Holding: ¶4:
In CHIPS cases, appeals are commenced by first filing of a notice of intent to pursue postconviction relief, and then by a notice of appeal. See WIS. STAT. § 809.30(2) (1997-98). Because no notice of intent has been filed in this case, the purported notice of appeal is premature. We will, however, construe James B.'s 'notice of appeal' as the notice of intent to pursue postconviction relief.
Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight [2] petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford, 269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

More than a little fussy, no? Not so much the abstract principle—court of appeals is exclusive forum to resolve Knight claim—but the result on these facts. The claim is in the court of appeals. Why can’t they just (liberally) construe the appeal to be a Knight petition, consistent with the idea that pro se claims are liberally construed so as to overcome technical defects? Santana will simply turn around, file the petition with the court of appeals, and they’ll have to review it anyway.
Issue/Holding2:
¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). [3]

¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

What’s with the incorporation of statutory habeas procedure, § 782.04? Habeas is a common law as well as statutory procedure, State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, ¶6, 593 N.W.2d 48, and a Knight petition is a common law mechanism. Nothing wrong, of course, with requiring that a habeas petition filed in the court of appeals comply with Rule 809.51, but compliance with § 782.04 (statutory habeas) is deeply problematic—not least because statutory habeas may be filed in any court, supreme court, court of appeals, and circuit court, § 782.03. The court just got done telling us that a Knight habeas can’t be filed in circuit court, so how can it justify incorporating a procedure which applies to circuit court?

Note as well the court’s recognition that if Santana has a constitutional or jurisdictional issue, he may raise it with a § 974.06 motion (¶¶8, 11) – with no mention made, by the way, of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). What this suggests, albeit obliquely, is that the E-N serial litigation bar simply does not apply where there has been no prior litigation. On this point, see State v. Anou Lo, 2003 WI 107, ¶44 n. 11 (“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis.  2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis.”).

Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas As Exclusive Mechanism
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals
For Evans: Robert R. Henak
Issue/Holding: The petition for writ of habeas corpus procedure mandated by State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) is the exclusive mechanism for seeking reinstatement of direct appeal deadlines lost on account of ineffective assistance of counsel; the court of appeals erroneously exercises discretion when it enlarges the deadline via § 809.92(2) motion. ¶¶38, et seq.
Enlargement of NOI Deadline, Court of Appeals’ Authority / Factors to Consider
State v. Christine M. Quackenbush /  State v. Michael D. Lee, 2005 WI App 2
For Quackenbush: Tyler J. Tripp
For Lee: Thomas F. Locante, SPD, La Crosse Trial
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue1: Whether, in light of State v. Iran D. Evans, 2004 WI 84, the court of appeals retains any authority under § 809.82 to extend the time for filing a notice of intent to pursue postconviction relief.
Holding1:
¶9. On its face, Evans is concerned only with extensions of the time to file a postconviction motion, when the ground for the motion could be construed as ineffective assistance of appellate counsel. The question, then, is whether Evans should be extended to bar extensions of the time to file a notice of intent to pursue postconviction relief, when the ground for the motion could be construed as ineffective assistance of trial counsel. We conclude that it should not be, and therefore we decide these motions by using the "good cause" standard provided in Wis. Stat. Rule 809.82. Extending Evans to notices of intent is not supported by sound policy reasons and might have undesirable and unintended side effects.
Issue/Holding2:
¶11. In Evans, the supreme court noted that this court “’has a generally lenient policy about granting extensions that will enable a criminal defendant to prosecute an appeal.’” Evans, 273 Wis. 2d 192, ¶38 (citation omitted). We agree with this assessment, at least with respect to extensions sought within a limited period of time after the deadline for filing a notice of intent has passed. Although the court has not established firm guidelines for deciding extension motions, the judges of this court generally consider a number of factors in deciding whether to grant an extension. The longer the extension that is sought, the greater the showing that is generally required to satisfy us that there is good cause for granting it.

¶14 Factors that we may consider in granting an extension for the filing of a notice of intent under Wis. Stat. Rule 809.82(2)(a) include the extent to which the delay appears to have been without fault of the defendant; the promptness of the defendant's request for an extension; and the avoidance of a disproportionate expenditure of judicial resources to make factual findings regarding requests for relatively short extensions. When deciding extension requests, we also seek to screen out defendants who have simply changed their minds after experiencing confinement or after having their probation revoked, especially if a significant amount of time has elapsed since the conviction, and we consider the need of crime victims and the public for finality in criminal adjudications. These factors are not intended to be exhaustive, but merely to provide sense of the factors we consider when acting on extension requests.

¶15 Defendants who can establish that they were deprived of their statutory right to direct appellate review of their criminal convictions because of ineffective assistance of counsel are entitled to have their direct appeal rights reinstated, regardless of the presence or absence of other factors. …

¶17 … If counsel's error in commencing the postconviction process causes deprivation of the entire process, prejudice is presumed. …

The message is clear enough: Evans didn’t really alter the postconviction landscape, except where appellate counsel screwed up. Given that trial counsel is responsible for filing the notice of intent, then, it ought to be the rare case in which the court of appeals lacks authority to extend the deadline. And although there appears to be something like a predisposition to grant extension in the routine case, the court is equally clear that the longer the delay the greater the likelihood of resistance. Results in the cases at hand: in one instance, a 3+-month extension is granted, because “the length of the extension sought is not unreasonable [and] counsel states that the delay is not attributable to the defendant,” ¶24; and in the other, a 1-day extension granted, given “an apparently good-faith admission of error by trial counsel” in filing the NOI, ¶25.

On the related if somewhat tangential issue of trial counsel's constitutionally required duties with respect to filing the NOI, see generally Frazier v. South Carlina, 4th Cir No. 04-6500, 12/8/05 (decision as to whether to appeal is defendant's so that if s/he specifically requests it, counsel must commnce an appeal; and, where the defendant hasn't specifically requested an appeal, counsel must ordinarily consult with the client on this decision).

Criminal Appeals, Duties of Counsel, Generally
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals
For Evans: Robert R. Henak
Issue/Holding:
¶30. During postconviction proceedings, a defendant must choose between being represented by the SPD, proceeding pro se, or securing private representation. State v. Redmond, 203 Wis. 2d 13, 19, 552 N.W.2d 115 (Ct. App. 1996). A defendant does not have the right to hybrid representation on appeal. State v. Debra A.E., 188 Wis. 2d 111, 138, 523 N.W.2d 727 (1994). The right to counsel on direct appeal is a fundamental right and includes the guarantee of effective assistance of counsel on appeal. State ex rel. Flores v. State, 183 Wis. 2d 587, 604-05 & n.3, 516 N.W.2d 362 (1994). While a defendant has the right to counsel on direct appeal, he does not have the right to counsel of his choice, or the right to insist that particular issues be raised. Oimen v. McCaughtry, 130 F.3d 809, 811 (7th Cir. 1997). It is the duty of appellate counsel to decide what issues have merit for appeal. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). If appellate counsel concludes that an appeal would be frivolous, he may file a no merit report after following the procedures outlined in Wis. Stat. § (Rule) 809.32 and seek to withdraw. Flores, 183 Wis. 2d at 605. A defendant has a right to be informed of the right to a no merit report and that he has a right to insist that such report be filed if he disagrees with counsel's opinion that the appeal would have no merit. Id. at 607, 610.9 The defendant also has the option, if he agrees with counsel that the appeal is without merit, to waive the right to appeal. Id. at 616.

¶31. If, however, the defendant merely disagrees with counsel as to which issues will be raised, he has the choice of terminating counsel's representation and proceeding pro se or proceeding with counsel and later seeking relief on the grounds of ineffective assistance of appellate counsel. Debra A.E., 188 Wis. 2d at 138. If a defendant elects the former option and desires to proceed pro se, the defendant must be provided clear warnings regarding the dangers of self-representation and waiving the right to appellate counsel before appellate counsel may withdraw. State v. Thornton, 2002 WI App 294, ¶21, 259 Wis. 2d 157, 656 N.W.2d 45.10 Moreover,

[t]he state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. To do so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice.
Judicial Council Committee Note, 2001, Rule 809.30, Stats. (citing Wis. Admin Code § PD 2.04).
The court also discusses in some detail the various restrictions on collateral attacks via § 974.06 and habeas corpus, ¶¶32-35. No attempt is made at summarizing the discussion, except to say: only habeas, not § 974.06, may be used to assert ineffective assistance of appellate counsel; the doctrine barring serial litigation applies equally to both procedures; and, because habeas is an equitable remedy, it is subject to the doctrine, unlike § 974.06. The court also notes without resolving the following “novel legal questions,” ¶46, which apparently would be decided by the Knight-petition court: “1) whether a defendant waives his right to appellate counsel when he directs his appointed counsel to close his file and intends to secure private representation; 2) whether appointed counsel is required to inform the defendant of the dangers of proceeding pro se when he intends to seek private counsel, such that failure to do so constitutes deficient performance; 3) whether appointed counsel renders ineffective assistance by closing the client's file before he secures private representation, when she did so only at the client's demand and after informing him of the dangers of closing the file before the defendant obtained new counsel.” Other issues to be resolved would be whether a motion to withdraw was required, ¶¶47-48, and whether the petition is barred by laches, ¶49.

Cross-Appeal by Defendant: Extension of NOA Deadline
State v. Keith E. Williams, 2005 WI App 122
For Williams: Christopher William Rose
Issue/Holding: The court of appeals has authority to extend the defendant’s deadline for filing cross-appeal to State’s appeal of postconviction grant of new trial:
¶4        However, as the State points out, the jurisdiction of the circuit court was initially invoked by the motion for postconviction relief under Wis. Stat. Rule 809.30(2)(h). Williams’s right to appeal or to cross-appeal stems from his pursuit of postconviction relief under Rule 809.30. The time for a person [3] to take various steps in pursuing postconviction relief under Rule 809.30, including the time for filing a notice of appeal, can be extended. See State v. Harris, 149 Wis.  2d 943, 946, 440 N.W.2d 364 (1989). The filing of a notice of cross-appeal is a continuation of the pursuit of postconviction relief under Rule 809.30. Thus, the time for a person to file a notice of cross-appeal from the Rule 809.30(2)(i) postconviction order can be extended. 

¶5        Applying the same procedures to the defendant’s right to appeal and to cross-appeal comports with due process. See Harris, 149 Wis. 2d at 947 n.5.  It also preserves the defendant’s constitutional right to raise possible error on appeal. See State v. Perry, 136 Wis. 2d 92, 99, 401 N.W.2d 748 (1987) (“Any failure of the appellate process which prevents a putative appellant from demonstrating possible error constitutes a constitutional deprivation of the right to appeal.”).


 [3]   Wisconsin Stat. Rule 809.30(1)(b) defines “person” to be a defendant seeking postconviction relief in a criminal matter and does not include the State.  The State’s time to appeal in a criminal matter may not be extended.
The court goes on to find, without discussion, good cause for the extension (¶6). The court merely notes, somewhat cryptically (¶2), Williams’ position “that it recently became apparent that a cross-appeal is necessary to obtain review of other issues in the event the circuit court’s decision granting a new trial is reversed.”
Filing in county of origin where judge from different county assigned
State v. Clyde B. Williams, 230 Wis.2d 50, 601 N.W.2d 838 (Ct. App. 1999).
For Williams: Michael E. Nieskes.
Issue: Whether papers must be filed in the county of origin after a successor judge from another county is assigned to the case.
Holding: "In this appeal we conclude that when a judge from a different county is assigned to a case in response to a substitution request, orders and judgments of the assigned judge must be entered in the office of the clerk of circuit court in the county in which the action was originally filed in order to commence the applicable appeal period under § 808.04, STATS."
Jurisdiction/Finality of Order – (State’s) Motion to Reconsider Oral Ruling
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding: Jurisdiction attaches to state’s appeal from denial of reconsideration of an oral ruling dismissing a count, ¶7 n. 5:
The State appeals from the written order denying the motion for reconsideration. White, citing Ver Hagen v. Gibbons, 55 Wis. 2d 21, 25, 197 N.W. 2d 752 (1972), asserts that we do not have jurisdiction to review that order because the only issues raised in the motion for reconsideration were disposed of by the court’s initial ruling. However, the initial ruling was not an appealable order because it was oral: only written orders may be appealed. Ramsthal Adver. Agency v. Energy Miser, Inc., 90 Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979). The Ver Hagen rule does not apply in this situation. See Silverton Enters., Inc. v. General Cas. Co., 143 Wis. 2d 661, 665, 422 N.W.2d 154 (Ct. App. 1988) (Ver Hagen addresses the concern that a motion for reconsideration should not be used to extend the time to appeal an order or judgment when that time has expired).
Finality of Order, State’s Appeal: Collateral Attack on Prior OWI Conviction
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: The State may not appeal as a matter of right from a successful collateral attack on a prior OWI conviction, reducing the pending charge from OWI-3rd to -2nd; instead, the State’s remedy is to seek leave to appeal a non-final order:
¶2      A defendant may collaterally attack a prior conviction to prevent its use as a penalty enhancer when the prior conviction was obtained in violation of the defendant’s right to counsel.  State v. Hahn, 2000 WI 118, ¶¶28-29, 238 Wis.  2d 889, 618 N.W.2d 528.  An order granting such a collateral attack motion is interlocutory in nature so long as the underlying criminal proceeding is ongoing.

¶7      Because the collateral attack on Knapp’s prior OWI conviction would not affect the State’s ability to attain a conviction here, where the applicable prohibited alcohol concentration would remain the same under either a second or third offense, we conclude that the State has no appeal as of right under Wis. Stat. § 974.05(1)(d).  We further conclude that we lack jurisdiction over the appeal under Wis. Stat. § 808.03(1) and Wis. Stat. Rule 809.10(4) because the order appealed from is not final.  The proper mechanism to seek immediate review in these circumstances is by leave to appeal under Wis. Stat. Rule 809.50. [2]  Accordingly, we hereby dismiss the appeal for lack of jurisdiction.

The court simultaneously published an opinion casually noting that successful attack on an alleged OWI prior, if on a different ground, could be appealed by the State as a matter of right from the judgment of conviction. State v. Daniel J. Machgan, 2007 WI App 263, ¶5. Presumably, then (and assuming that result is correct, which could be a stretch), Knapp’s prosecutor could just wait until after conviction and then appeal the collateral-attack order. Sweet! Note further, though, that although the court dismissed the appeal-of-right, it is separately considering whether to grant leave to appeal (Case No. 2007AP002697 – CRLV), and has ordered briefing on “whether double jeopardy would bar the State from appealing the issue as of right following sentence.”
Finality of Order -- Postconviction Order Granting Plea-Withdrawal: Non-Final Order
State v. Bobby R. Williams, 2005 WI App 221
For Williams: Richard D. Martin, SPD, Milwaukee Appellate
Issue: Whether a postconviction motion granting plea-withdrawal is final, so as to trigger the 45-day deadline in § 974.05(1)(a) for State’s appeal.
Holding:  
¶15 Wisconsin Stat. § 808.03 sets forth appeals as of right and appeals by permission. Subsection (1) explains that an order is final when it “disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is” entered or recorded. Based on this definition, we conclude that the April 6th order was not a final order. An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case—either a trial or a guilty or no-contest plea. The April 6th order did not dispose of the entire matter in litigation. The order itself noticed a status conference for May 28th. Clearly, such order cannot be construed as a final order.

¶16 We are further not persuaded by Williams’s argument that the order should be considered final because it ended the plea hearing proceedings. As the State pointed out, the granting of a plea withdrawal contemplates either a trial on the matter or renewed plea proceedings. Based on the language of Wis. Stat. § 808.03(1), we conclude that the trial court’s April 6th order was not final. Thus, the trial court retains jurisdiction unless the State files a petition seeking to appeal from a nonfinal order, and this court grants such petition.

Background: Williams filed an 809.30 postconviction motion for plea-withdrawal which the trial court granted, without notice to the State. The grant of relief was therefore indefensible, given that settled procedure requires an evidentiary hearing before plea-withdrawal can be granted. (Compare, State v. Michael A. Grindemann, 2002 WI App 106 (trial court erred in granting motion to modify sentence without either seeking state's response or holding hearing).) Forty-nine days after the order granting relief was entered, the State filed a motion for reconsideration. If the order were deemed final, then this motion would be untimely, because then State then would have been obliged to file a notice of appeal with the 45-day deadline set by §§ 808.04(4) and 974.05(1)(a). But, if—as in the event—the order were deemed non-final, then the trial court has on-going (i.e., until entry of a final order) authority to reconsider, ¶11. As the passage quoted above indicates, the court of appeals deems the order granting plea-withdrawal to be non-final, therefore the trial court could entertain a motion to reconsider outside the (inapplicable) 45-day deadline.

What are the implications? Most prominently, the reasoning necessarily applies to a motion granting new trial (a point too obvious to bear elaboration). On the one hand, this result would appear to bring criminal postconviction practice in line with civil postjudgment procedure, Earl v. Marcus, 92 Wis. 2d 13, 16, 284 N.W.2d 690 (Ct. App. 1979) (order granting new trial non-final, because it continues rather than ends litigation). And yet, it’s not quite that simple. Some time back, the court of appeals determined that a postconviction order granting new trial was final, State v. Wright, 143 Wis. 2d 118, 122-23, 420 N.W.2d 395 (Ct. App. 1988), though that was based on State’s concession and soon thereafter the court noted that whether an order granting new trial was indeed “final in substance for purposes of appellate review” remained an open question, State v. Tolliver, 149 Wis. 2d 166, 168-69, 440 N.W.2d 571 (Ct. App. 1989) (not resolving question). That wouldn’t be so bad—a recurrent issue nonetheless left unresolved through the years but now (ahem) finally answered—except that very recently the court treated a motion granting new trial as final and appealable, in State v. Keith E. Williams, 2005 WI App 122 (State filed notice of appeal to order; court of appeals granted extension of time for defendant to file notice of cross-appeal). This suggests that, notwithstanding the question raised by Tolliver, practice was and continues to be treatment of order granting new trial as final. Ought that practice be considered doubtful now? Hard to say. Section 974.05 authorizes State’s appeal from final orders, and orders “granting postconviction relief” (as well as other enumerated matters such as suppression orders). The most sensible construction would be to place these authorized matters on the same footing as final orders. Tolliver notwithstanding, it’s very difficult to see how the grant of relief would not support a State’s notice of appeal (as opposed to petition for leave to appeal non-final order). And, indeed, the court of appeals might well say just that if confronted with an attempt to dismiss a State’s notice of appeal on such an order. But that would mean that these orders are treated as non-final for one purpose (trial-level motion for reconsideration) and final for another (notice of appeal). Is that too incoherent an approach? (Or, even less charitably, too result-oriented?) Finally, this outcome doesn’t change the idea that relief that does terminate the prosecution is final, e.g., State v. Romero D. Wilson, 2000 WI App 114 (dismissal of complaint upon refusal to bind over for trial held final, appealable order).

Finality of Order
Derek J. Harder v. Carol L. Pfitzinger, 2004 WI 102
Issue/Holding:
¶15. If there are no further documents in the circuit court's file and all substantive issues have been decided for one or more parties in an order or a judgment, there is usually less confusion about whether the time for appeal has begun to run, than when there is a subsequent court document. Our prior cases have attempted to remove confusion about when the time limits in Wis. Stat. § 808.03(1) begin to run by explaining that a party may not assume that the last document in the file is the one that is referred to in § 808.03(1). See Fredrick, 92 Wis. 2d at 688. We have cautioned that the label on the document is not controlling. Thomas/Van Dyken, 90 Wis. 2d at 241. However, confusion has continued. Therefore, in order to clarify our past decisions in regard to determining when a document is final for purposes of § 808.03(1), we hold that when a circuit court enters an order or a judgment that decides all substantive issues as to one or more parties, as a matter of law, the circuit court intended that to be the final document for purposes of appeal, notwithstanding subsequent actions by the circuit court or the label the document bears.

¶16. After having clarified the meaning of Wis. Stat. § 808.03(1), we now turn our attention to the application of § 808.03(1) to the order for judgment in this case….

¶17. … The only task that remained after the circuit court issued the order for judgment7 was the determination of the amount of costs. This is generally a function of the clerk of court that does not further involve decision making8 by the circuit court, see Wis. Stat. § 814.10(1), nor does it affect the finality of the order. See, e.g., Campbell v. Campbell, 2003 WI App 8, ¶7, 259 Wis. 2d 676, 659 N.W.2d 106 (indicating that a judgment disposing of a claim is final though a request for costs is pending); see Appellate Practice, supra, § 4.7, 4-5 (indicating that a document is final if the judgment or order "leave[s] nothing to be done except taxing of costs and disbursements and enforcement by execution");9 Thomas/Van Dyken, 90 Wis. 2d at 243 (concluding a judgment is final for purposes of appeal when it disposes of the entire action, "precluding further proceedings except enforcement by execution"). Accordingly, because it decided all substantive issues as to one or more parties, we conclude that the circuit court intended the February 28, 2003 order for judgment to be the final document for purposes of appeal, even though it was not the final document in the circuit court's file.

Commencing Appeal – Finality of Order
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: An order granting the State’s motion to reconsider an SVP’s supervised release was final and appealable:
¶26      We disagree with Schulpius's characterization of the November 2000 order. Even though the circuit court did not initially characterize it as a final order, it was clear that the November 2000 order was intended to resolve all litigation then pending between the parties, and the circuit court so indicated in a letter to the parties on December 1, 2000, stating that it would not enter any further order. [5] As we explained in Harder v. Pfitzinger:
We conclude that when an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court.
Harder v. Pfitzinger, 2004 WI 102, ¶2, 274 Wis. 2d 324, 682 N.W.2d 398. Therefore, when Schulpius failed to appeal timely from the November 2000 order, he waived his right to challenge the validity of that order. …
This holding is too fact-specific to merit detailed discussion. However, some mention should be made of the trial judge’s letter as evincing intent to make the order final—it’s well-settled that finality “must be established by looking at the document itself,” Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655 (1979). Does this now mean that finality is tested by written (and oral) ancillary or accompanying remarks? The court of appeals' analysis was as follows, ¶33, n. 8:
… The order on its face unambiguously contemplated entry of a reifying order when, in the last sentence, the trial court wrote: "As required by SCR 70.15 [sic-SCR 70.15 establishes "the judicial conference of Wisconsin"], a form order for such commitment will be separately entered." Thus, the November 29 document was not on its face a "final order," even though Judge Franke later decided that entry of a separate order was not necessary. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490, 493-494, 326 N.W.2d 240, 241-242 (1982)….
Commencing Appeal – Effect of Notice of Appeal to Non-Final Order – Construing as Petition for Leave to Appeal
State v. Gary J. Knapp, 2007 WI App 273
For Knapp: Cory C. Chirafisi
Issue/Holding: Dismissal of an appeal as having been directed to a non-final order doesn’t in and of itself bar the court of appeals from deciding to grant leave to appeal, ¶7 n. 2:
In its jurisdictional memoranda, the State asks us to construe its notice of appeal as a petition for leave to appeal in the event that we decline jurisdiction over the appeal.  For logistical reasons, we conclude that it makes more sense to construe the State’s memoranda as its petition for leave, and we do so by separate order.
Finality of Order -- Special Proceeding
State v. Denis L.R., 2004 WI App 51, affirmed on other grounds, 2005 WI 110
For Denis L.R.: Richard Hahn; Dwight D. Darrow
Issue/Holding: ¶10, n. 3:
Dawn originally commenced this appeal by filing a petition for leave to appeal a nonfinal order. However, we determined that the order was final because it concluded a special proceeding with respect to the confidentiality privilege held by Dawn on behalf of Kirsten. Following our order, Dawn filed a notice of appeal.

Kirsten is the child-complainant, Dawn her mother and therefore privilege-holder. As the P-H, Dawn was allowed to intervene and litigate the privilege issue. What’s worth mentioning is the direct appealability of the order finding that the privilege had been waived. Wisconsin has a relatively unique, liberal approach in regard to what other jurisdictions might regard as ancillary, and therefore non-final, orders arising during the course of any given case. This probably tends to come up most frequently in sanction situations (fines levied against counsel, or contempt against a witness or even defendant), but this case illustrates another example. Just something to keep in mind.
Finality of Order -- Subsequent Order Superceding Prior Order
State v. Patrick E. Richter, 2000 WI 58, 235 Wis. 2d 524, 612 N.W.2d 29, reversing 224 Wis. 2d 814, 592 N.W.2d 310 (Ct. App. 1999)
For Richter: Susan Alesia, SPD, Madison Appellate
Issue: Whether the second of two competing orders granting a suppression motion superceded the first, so as to make the state's notice of appeal timely.
Holding: Under the circumstances, the trial court clearly intended the second order to supercede the first and the notice of appeal was therefore timely.
Analysis: This is a somewhat technical appellate problem but recurrent and important nonetheless for trial practitioners. The time limit for appeal doesn't begin running until a written order is entered. The deadline for a state's appeal (on a suppression order such as this one) is 45 days. § 974.05. This time limit isn't extendible, so an untimely notice of appeal can't be rehabilitated. In this case, the trial court entered two separate orders (the first had been drafted by the defense, the subsequent one by the prosecution). The notice of appeal would be untimely as measured against the first order, timely as against the second. Generally, the entry of a "successive, nonconflicting" order doesn't override a prior order; in other words, appeal can't be taken from an order merely denying a motion for reconsideration. ¶¶22-23. In this case, however, for very fact-specific reasons the second order does supercede the first one. The trial court entered the first order before expiration of a five-day waiting period for objections provided by local circuit court rule. ¶20. The prosecution later indicated that it did have objections, and then submitted its own, proposed order without objection from the defense. Emphasizing the absence of any evidence of attempted manipulation of the appellate time clock, the court holds: "the circuit court's second order, while not specifically vacating the earlier order, corrected the apparent mistaken entry of the first, and the one supplanted the other for all purposes, including the time for appeal." ¶24.
Go to Brief
Finality of Order -- Refusal to Bind Over
State v. Romero D. Wilson, 2000 WI App 114, 235 Wis.2d 177, 612 N.W.2d 368
For Wilson: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether an order dismissing a complaint, on refusal to bind over at preliminary hearing, is final and therefore appealable by the state.
Holding: An order dismissing a complaint is a final order, appealable by the state as of right (reaffirming State v. Fry, 129 Wis. 2d 301, 304, 385 N.W.2d 196 (Ct. App. 1985); subsequent amendment to the state's appeal statute, § 974.05(1)(a) deemed a mere effort "to simplify" that statute). Outside of double jeopardy circumstances, the state may appeal any adverse final order or judgment, namely one that "terminates the entire matter in litigation."
Go to Brief
Notice of Appeal – Contents – Inconsequential Error
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: ¶1 n. 1:
Haywood’s notice of appeal mistakenly asserts that he also appeals “from … the postconviction motion dated December 2, 2008.”  First, Haywood’s appeal is from the circuit court’s order denying his motion, not from the motion.  Second, the circuit court’s order is dated December 1, 2008, although it was filed on December 2.  We, obviously, ignore these silly errors, see Wis. Stat. Rule 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”) (made applicable to appellate procedures by Wis. Stat. Rule 809.84), but caution counsel to be more careful in the future.
Compare, State v. Patrick Jackson, 2007 WI App 145 (defect in NOA referring to order denying postconviction motion but not to judgment of conviction “is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him”—non-fatal nor, for that matter, termed “silly” error; authored, incidentally, by same judge; take note that, perhaps, court’s patience for sloppy wording in NOA wearing thin).
Notice of Appeal - Notice of Appeal – Contents: Failure to Identify Appealable Document; Notice of Intent as Substitute
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: ¶ 2 n. 2:
The failure of the notice of appeal to correctly identify the final appealable document is not fatal to appellate jurisdiction. See Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267 (1992). The caption has been amended to reflect that the appeal is taken from both orders. Following entry of the order for protective placement, the appellant timely filed a notice of intent to pursue postdisposition relief under Wis. Stat. Rule 809.30(2)(a). That notice may be construed as a timely notice of appeal from the order appointing a guardian.
No quarrel with the idea that omissions, even nominally critical ones, don’t undermine a notice of appeal. Nor, really, with the idea that the notice of intent “may be construed as a timely notice of appeal.” It’s just that the latter principle is somewhat novel (and, to be sure, not always followed in the past by the court), and therefore worth keeping in mind.
Notice of Appeal - Notice of Appeal – Contents: Chs. 54 (Guardianship) and 55 (Protective Placement) = 3-Judge Panel – Default for Combined 1-Judge and 3-Judge Panel Appeal = 3-Judge
Waukesha County v. Genevieve M., 2009 WI App 173
For Genevieve M.: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding: Although a ch. 54 guardianship appeal is decided by a 3-judge and ch. 55 protective placement by a 1-judge panel, when the 2 were commenced and decided under a single trial court case number, the appeal will be decided by a 3-judge panel:
¶5        The plain language of Wis. Stat. § 752.31(1) establishes that all appeals before the court of appeals shall be decided by a panel of three judges. Section 752.31(3) merely provides exceptions to the general rule for the types of cases listed in § 752.31(2). Exceptions are to be strictly construed and applied. See Lang v. Lang, 161 Wis. 2d 210, 224, 467 N.W.2d 772 (1991). Accordingly, all doubts about whether an appeal should be decided by a three-judge panel or one court of appeals judge should be resolved in favor of the default rule that a three-judge panel be utilized. See Wisconsin Fertilizer Ass’n, Inc. v. Karns, 52 Wis. 2d 309, 317-18, 190 N.W.2d 513 (1971) (with regard to exemptions to safety statutes all doubts should be resolved in favor of the general provision rather than the exception). Thus, where an appeal involves the type of case specified in § 752.31(2)(d), and also involves a case which § 752.31(1) requires to be heard by a three-judge panel, the appeal will be assigned for decision by a three-judge panel. This is consistent with this court’s practice of having the chief judge order a one-judge appeal to be decided by a three-judge panel when the appeal is consolidated with an appeal required by statute to be heard by a three-judge panel. See Wis. Stat. Rules 809.10(3), 809.41(3). This does not change that appeals which involve only a protective placement order or other order confined to a proceeding under Wis. Stat. ch. 55, such as a termination petition under Wis. Stat. § 55.17 or annual review under Wis. Stat. § 55.18, will be assigned for decision by one court of appeals judge.
Notice of Appeal - Notice of Appeal – Contents – Inconsequential Errors
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
For Jackson: Marcella De Peters
Issue/Holding: Footnote 1:
Patrick Jackson’s notice of appeal says that he is appealing the trial-court order denying his motion for postconviction relief. The notice of appeal does not also indicate that he is also appealing from the judgment of conviction. This defect, however, is not fatal to our review of Jackson’s contention that the judgment was improperly entered against him. First, if the notice of appeal had, in haec verba, indicated that it was also appealing the judgment, it would have been timely because it was filed within twenty days of the trial court’s order denying Jackson’s motion for postconviction relief. See Wis. Stat. Rule 809.30(2)(j) (“The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion.”) (emphasis added). Second, it is a general rule of appellate jurisdiction that “all orders or rulings affecting both the respondent and the appellant when so reasonably related, may be heard whether appellant has included in his notice of appeal every part of the order or judgment or not.” Jones v. Pittsburgh Plate Glass Co., 246 Wis. 462, 468, 17 N.W.2d 562, 565 (1945). Thus, Wis. Stat. Rule 809.10(1)(f) recognizes that “[a]n inconsequential error in the content of the notice of appeal is not a jurisdictional defect.” Cf. Rule 809.10(4) (“An appeal from a final judgment or final order brings before the court all prior nonfinal judgments, orders and rulings adverse to the appellant and favorable to the respondent made in the action or proceeding not previously appealed and ruled upon.”). Accordingly, we review all the matters he has raised that affect the judgment entered against him as well as those that affect the trial court’s order denying his motion for postconviction relief.
Notice of Appeal -- Indigency Filing -- by Fax
State v. Ronald G. Sorenson, 2000 WI 43, 234 Wis. 2d 648, 611 N.W.2d 240, reversing unpublished decision of court of appeals
Issue: "(W)hether Wis. Stat. § 801.16(2), under which 'papers that do not require a filing fee' may be filed by facsimile transmission, permits indigent parties to file a notice of appeal by facsimile."
Holding: ¶5:
We hold that a notice of appeal may be filed by facsimile transmission because a notice of appeal is not a paper that requires a filing fee to confer jurisdiction. The court of appeals obtained jurisdiction over this appeal when the clerk of the circuit court received Sorenson's facsimiled notice of appeal within the statutorily prescribed time frame.
Analysis: This is a Ch. 980 case. Sorenson, who was indisputably indigent, was appointed an attorney who faxed the notice of appeal to the clerk's office on the last day for filing the notice of appeal. (Because 980 is civil, the appeal deadline can't be extended. § 809.82(2)(c).) Prior authority established that only papers not requiring filing fees could be filed by fax. Pratsch v. Pratsch, 201 Wis. 2d 491, 494-95, 548 N.W.2d 852 (Ct. App. 1996). The court of appeals nonetheless applied a uniform ban to fax-filing of all notices of appeal, fee-waived or not, because an assessment of indigency might not be made until after the notice of appeal was filed. ¶13. The supreme court reverses, making several points in the process. First, a notice of appeal filing fee isn't a jurisdictional requirement; that is, failure to pay the fee at the time of filing isn't fatal to jurisdiction. ¶¶18, 25. Second, an indigent isn't required to pay a filing fee at any time during the appellate process. ¶26. Third, the appellate rules of procedure don't specify that a notice of appeal must be accompanied by a filing fee. ¶27. Emphasizing that all litigants should be treated the same, the court holds that all litigants -- indigent or not -- may file notices of appeal by fax, overruling Pratsch. ¶28. The obligation to pay fees, in other words, may be determined after the fact. ¶29. The court cautions that a timely notice of appeal is an irrevocable requirement. ¶33. Moreover, this holding doesn't mean that all documents can be filed by fax: papers requiring payment of a fee at the time of filing can't be filed by fax, § 801.16(2); additionally, permission to file by fax must be secured by local rule or judge. ¶35.
Notice of Appeal -- Deadline -- Pro Se Prisoner "Mailbox Rule"
State ex rel. Dillard Earl Kelley, 2003 WI App 81
Issue/Holding: The prison mailbox rule of State ex rel. Nichols v. Litscher, 2001 WI 119 (petition for review filed after nominal deadline timely nonetheless if submitted before deadline to prison authorities for mailing by pro se prisoner) extended here to notice of appeal to dismissal of habeas corpus challenging custody; and, rule’s requirement that document be properly addressed satisfied if addressed to branch clerk of Milwaukee court:
¶11. In Wisconsin, trial courts are circuit courts of "general jurisdiction" with the "power to hear and determine, within their respective circuits, all civil and criminal actions and proceedings." Wis. Stat. § 753.03. Wisconsin Stat. §§ 753.016(1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. Reading these statutes in pari materia, we conclude that in Milwaukee County "the clerk of the trial court" contemplated by Wis. Stat. Rule 809.10(1)(a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court.

¶12. In view of this specific statutory scheme governing the location of deputy clerks in each branch of the trial court of Milwaukee County, we conclude that Kelley properly addressed his notice of appeal "to the clerk of the trial court" within the meaning of Wis. Stat. Rule 809.10(1)(a) by specifying its delivery to "Circuit Court Branch 42, Milwaukee Courthouse, Milwaukee, WI 53233." Because Kelley's envelope was properly addressed and timely placed in the prison mail prior to the expiration of the ninety-day time limit following the entry of the circuit court's order on appeal, we hold that the appeal was timely filed within the meaning of Nichols and this court has jurisdiction of it. Accordingly, the State's motion to dismiss the appeal is denied.

Nothing, interestingly, about "psotage prepaid," which therefore presumably is not a mailbox-rule requirement. Be cautioned, though, that the federal system takes a different view, Edmund Ingram v. Jones, Nos. 06-2766 & 06-2879, 11/14/07: where prison has a "legal mailing system," the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, "if a prison does not have a legal mailing system, the prisoner is required to show, through a declaration or notarized statement, that his notice was timely filed in order to benefit from the mailbox rule." Note that, at least as of the date of this opinion, Waupun did not have a separate legal mailing system, so that the inmate's deposit of mail without prepaid postage failed to trigger the mailbox rule and resulted in an untimely 2254 NOA.
Notice of Appeal -- Unsigned
State v. Marvin C. Seay, State v. Christopher Tillman, 2002 WI App 37
Issue/Holding:
¶1. In these two appeals, the appellants filed unsigned notices of appeal with the clerks of the circuit courts. The issue is whether the failure to sign the notice of appeal deprives this court of appellate jurisdiction. In accord with the recent United States Supreme Court ruling in Becker v. Montgomery, 121 S. Ct. 1801 (2001), we conclude that a person's failure to sign the notice of appeal does not deprive this court of appellate jurisdiction if the omission is corrected once it is called to the appellant's attention....

¶9. For these purposes, Wis. Stat. § 802.05(1) is identical to Rule 11(a) of the Federal Rules of Civil Procedure. And, like Federal Rules of Appellate Procedure 3(c)(4), Wis. Stat. § 807.07(1) provides that '[i]f it appears ... that [an] appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.' See also Northridge Bank v. Cmty. Eye Care Ctr., Inc., 94 Wis. 2d 201, 203, 287 N.W.2d 810 (1980) (an appellant should be permitted to amend a timely filed notice of appeal under § 807.07(1) to correct an 'inconsequential' error in the content of the notice of appeal). All of the federal rules under consideration in Becker have substantially similar counterparts in Wisconsin. Therefore, we conclude that the Supreme Court's analysis in Becker is persuasive.

TPR – State’s Appeal, by GAL
State v. Lamont D., 2005 WI App 264
Issue/Holding: ¶1 n. 4:
Lamont argues that this court does not have jurisdiction over this matter because the guardian ad litem filed the notice of appeal and the State simply joined in the appeal instead of the other way around. We reject Lamont’s contention.  WISCONSIN STAT. § 48.235(7) plainly states that the guardian ad litem “may appeal, may participate in an appeal or may do neither.” This clearly authorizes the guardian ad litem to file a notice of appeal. When the guardian ad litem has appealed, the State is obligated to participate as a representative of the public interest in certain circumstances. Lamont has not provided, nor can we find, anything which requires the State to file a separate notice of appeal, when the guardian ad litem has already done so, and the State’s interests are aligned with those of the guardian ad litem.
Traffic Cases
City of Sheboygan v. Laura I. Flores, 229 Wis. 2d 242, 598 N.W.2d 307 (Ct. App. 1999).
In a traffic regulation case, the docket entries - not any judgment or order - reflect the final determination and trigger the notice of appeal deadline.

Processing Appeals - Right to Counsel

Right to Retained Postconviction Counsel of Choice
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:
¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented. The issue here arose not on direct appeal under Wis. Stat. § 808.03, but rather when Peterson pursued postconviction relief in the circuit court. See Wis. Stat. § 808.01(1) (“appeal” means review in an appellate court).

¶11      We have located no Wisconsin case directly on point; that is, addressing the right to be represented by retained counsel of choice during postconviction proceedings in the circuit court. Neither party has offered any mandatory authority for deciding the question. Nonetheless, sufficient guidance exists in Sixth and Fourteenth Amendment case law to indicate that a person has a qualified right to counsel of choice. … It is apparent from the Whitmore case and SM 33 that Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal.

¶12      When considering whether the right to counsel at a Machner hearing is derived from the Fourteenth Amendment, as in Douglas, or from the Sixth Amendment, as in Gonzalez-Lopez, Wheat, and Miller, we observe that the Machner proceeding is much more akin to a trial than an appeal. …

Does the basis of the right to postconviction counsel really matter? There is absolutely no doubt that the right attaches as a matter of equal protection as the State argues, ¶9 (and as a matter of due process as well, e.g., State ex rel. Ruven Seibert v. Macht, 2001 WI 67, ¶¶1, 12). However, regulation of the right is pretty well settled under the 6th A, less so under the 14th, therefore in theory it may matter how the right is pigeonholed. Might matter … a decent argument could be made that under the 14th A you should have the same right to counsel of choice as under the 6th. But that isn’t the route chosen by the court; instead, as the block quote indicates, the court hitches the right to the 6th A. Just one little problem: it’s not a particularly tenable approach. The 6th amendment affords trial-level rights (which is why, for example, there’s no right to confrontation at a preliminary hearing or, for that matter, at sentencing). The 6th amendment simply doesn’t apply to appeals which the court, of course, acknowledges; but instead of accepting the ineluctable conclusion, the court instead attempts a transparently clumsy parsing of appellate procedure: a Rule 809.30 motion is, the court says, distinct somehow from a “direct appeal,” ¶10. Well. Section 974.02 says that “(a) motion for postconviction relief” must be made per Rule 809.30; and Rule 809.30(1)(c) defines “postconviction relief” as “an appeal or a motion for postconviction relief.” You get the drift: a Rule 809.30 postconviction motion is part of the direct appeal process, and separating it out (let alone consigning it to the category of trial, or pre-conviction process) is arbitrary.

The court, to be sure, has previously distinguished “postconviction” from “appeal” procedure (albeit not to the extent of fashioning the former as trial-level in nature), most notably in State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) (claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court; IAC claim against appellate counsel must be raised by habeas in appellate court). The distinction may be arbitrary, State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, ¶9 n. 4 (“(t)he terms are sometimes used interchangeably”), but we’ve lived with it awhile now … at worst, it makes life interesting for someone deciding where and how to launch a collateral attack. But the implications of the current opinion go further. If the 6th amendment right to counsel applies at the postconviction stage, why not the others? Does the 6th amendment apply only to Machner hearings, or to any postconviction evidentiary hearing? This isn’t to say that the result is wrong—far from it—only that it is the due process clause not the 6th A that supports the flexible analysis deemed decisive by the court (¶12).


Processing Appeals -- Interlocutory

Interlocutory Appeal -- Review in Circuit Court of Bindover by Court Commissioner, by Motion to Dismiss
State v. Eric D. Gillespie, 2001 WI App 35, PFR filed 2/1/05
For Gillespie: John Anthony Ward
Issue: Whether, following bindover by court commissioner under § 757.69(1)(b), a defendant may obtain a “preliminary hearing de novo” (i.e., a second preliminary hearing) in circuit court under § 757.69(8).
Holding:
¶7 The State contends that WIS. STAT. § 970.04 precludes Gillespie’s request for a second preliminary hearing. The statute states:
Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.
...

¶8 We agree with the State. … While the factual scenario set forth in § 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so. See A. and A.P. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984).

¶9 We also observe that the Wisconsin Supreme Court has decreed that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994)....

Interlocutory Appeal -- Double Jeopardy Issue
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
Issue/Holding: ¶1, n. 3:
We grant Harp’s petition because the mistrial order implicates her right against double jeopardy. “Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from ‘substantial or irreparable injury,’ one of the three criteria for testing the appropriateness of review under sec. 808.03(2).” State v. Jenich,94 Wis. 2d 74, 97, 292 N.W.2d 348 (1980).
Interlocutory Appeal -- Issue Issues Limited to Those Presented in Petition for Leave to Appeal
State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04
For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek
Issue/Holding:
¶1 The major holding here is that when this court accepts an interlocutory appeal, the appellant is limited to briefing only those issues presented in the petition for leave to appeal and may not raise additional issues without the prior consent of the court. …

¶13. More to the point, however, is the reason behind this limitation. We do not lightly grant a petition for leave to appeal. See, e.g., State ex rel. A.E. v. Circuit Court for Green Lake County, 94 Wis. 2d 98, 102, 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105a, 292 N.W.2d 114 (1980) (interlocutory appeals undesirable). The general policy of this court is to avoid piecemeal disposal of litigation. See, e.g., id. at 101. Moreover, as Michael S. Heffernan cogently stated in the State Bar CLE book, Appellate Practice and Procedure in Wisconsin, § 9.5 (3d ed. 2003), it is also in recognition of our heavy case load. Heffernan further points out that the policy against granting interlocutory appeals is particularly strong in criminal prosecutions. See id. Delays in that area are "inimical to an effective criminal justice system." Id. (citing A.E., 94 Wis. 2d at 102).

¶14. Against this backdrop, Wis. Stat. § 808.03(2) details the circumstances where we will grant a petition for leave to appeal a nonfinal order: (1) if the issue or issues will materially advance termination of the litigation or materially clarify further proceedings, (2) will protect the petitioner from irreparable injury, or (3) will clarify an issue of general importance in the administration of justice. As Heffernan explains, implicit in our consideration of each factor is the question of whether the petition shows a substantial likelihood of success on the merits. See Heffernan, supra, at § 9.4. …

¶16. Therefore, we will only grant petitions for leave to appeal where the issue or issues raised in the petition meet one or more of the criteria in Wis. Stat. § 808.03(2). In fact, even if there are several issues raised in the petition, but not all meet the criteria, we may well order that the briefing be limited to only those issues we feel have merit under the statute.

(An aside: if you’re going to do any appeals in Wisconsin, the Heffernan treatise is indispensable.)
Interlocutory Appeal -- Timeliness
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, State v. Polashek, 2001 WI App 130, 246 Wis. 2d
For Polashek: Nila Jean Robinson
Issue: Whether the state's petition for leave to appeal a non-final order was timely, where the order was issued "nunc pro tunc" in reference to an earlier letter in which the court set forth its inclination to rule against the state.
Holding: The appeal is timely, for two reasons. First, the letter was not an order, its plain text anticipating the possibility of further developments; the "nunc pro tunc" label cannot create a retroactive order where none previously existed. ¶15, citing with approval, State v. Jeffrie C.B., 218 Wis. 2d 145, 150, 579 N.W.2d 69 (Ct. App. 1998). Second, "the court of appeals exercised its discretionary power to waive the non-jurisdictional timeliness issue." ¶16. (This casual aside leaves a bit unsaid. It remains true that an appeal or cross-appeal of a final judgment or order, other than under R. 809.30 or R. 809.40, may not be extended. R. 809.82(2). But this case involves a petition for leave to appeal a non-final order, R. 809.50, and therefore doesn't come under that jurisdictional straight-jacket. The long and short of it is that the court of appeals has authority to extend the 14-day deadline for filing a Rule 809.50 petition.)
Interlocutory Appeal -- Issue / Claim Preclusion
State ex rel Thomas Hass v. Wisconsin Court of Appeals, 2001 WI 128
Issue/Holding:
¶10. The issue presented in this case is whether this court should exercise its constitutional superintending and administrative authority to direct the court of appeals to accept all petitions for interlocutory appeal where the circuit court has denied a claim that the state court action is barred by a final federal court judgment on issue and claim preclusion grounds. We decline to extend our authority to mandate review in such instances. Instead, based in part on concerns of comity between the state and federal courts, we urge the court of appeals to carefully review such future petitions.
Note: The relevance of this case is in its reiteration, ¶18, of State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114, modified per curiam, 94 Wis. 2d 97a, 292 N.W.2d 348 (1980):
In that case, we declined to use our superintending and administrative authority to require the court of appeals to grant every nonfinal order denying a motion to dismiss based on double jeopardy. Id. at 97a n.1. Instead, we concluded that the review of such orders was appropriately left to the discretion of the court of appeals pursuant to Wis. Stat. § 808.03(2). Id. Despite this conclusion, we nevertheless urged the court of appeals to be careful in exercising that discretion. Id. at 97a-97b. We stated that "[g]iven the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from 'substantial or irreparable injury,'--one of the three criteria for testing the appropriateness of review under sec. 808.03(2)." Id. at 97b.
Interlocutory Appeal -- "Alford" Plea -- Challenge to Trial Court's Refusal to Accept
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 erroneously refused to accept an "Alford" plea under its express policy of never accepting one.
Holding:
¶8  Even if we were to determine that the trial court erred in rejecting the tendered Alford plea, the error would not justify setting aside the results of Williams's jury trial. This is because any error stemming from a trial court's refusal to accept an Alford plea, like error in binding over a defendant following a preliminary hearing, is cured when a defendant receives a fair and error-free trial. See State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991).

...

¶12  (A) defendant's opportunity to obtain the benefit of a plea bargain can be adequately protected by requiring a defendant who believes his tendered plea has been improperly rejected to seek leave for an interlocutory appeal.

.
(Note: Is this result at least arguably inconsistent with State v. Ludwig, 124 Wis.2d 600, 369 N.W.2d 722, 725-728 (1985) and State v. Fritz, 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)? -- i.e., counsel's deficiency in failing to convey to or properly advise a defendant with respect to a plea offer isn't rendered non-prejudicial by a resultant fair trial.)
Go To Brief
Cross-appeal on interlocutory appeal.
Fedders v. American Family Mut. Ins. Co., 230 Wis.2d 577, 601 N.W.2d 861 (Ct. App. 1999).
Issue: Whether a party may cross-appeal of right any interlocutory order after leave to appeal has been granted.
Holding: "(W)e hold that once leave to appeal has been granted, any other interlocutory order is appealable only by leave of this court. We dismiss the notices of cross-appeal filed in this appeal."


Processing Appeals -- John Doe

John Doe Proceeding -- Review of, by Supervisory Writ
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, (AG’s) PFR filed 8/16/07
Pro se
Issue/Holding: Review of a judge’s actions in a John Doe proceeding aren’t subject to direct appeal, but may be reviewed by writ of mandamus:
¶9 The parties agree that we review Judge Murray’s actions in connection with Hipp’s John Doe petition via mandamus. See State of Wisconsin ex rel. Unnamed Person No. 1 v. State, 2003 WI 30, ¶¶41, 48, 260 Wis. 2d 653, 680, 682–683, 660 N.W.2d 260, 273, 275; see also id., ¶23, 260 Wis. 2d at 670, 660 N.W.2d at 268 (“[I]t is well settled that a John Doe judge’s actions are not directly appealable to the court of appeals because an order issued by a John Doe judge is not an order of a ‘circuit court’ or a ‘court of record.’”). As we have seen, the issue here is whether the John Doe statute, Wis. Stat. § 968.26, permits a person filing a John Doe petition to compel the appearance of witnesses at the hearing by subpoenas not issued by the John Doe judge. As noted, we conclude that it does.
John Doe Proceeding -- Review of, by Supervisory Writ
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:
¶48. On balance, we conclude that Wisconsin Constitution, Article VII, Section 5(3), read together with the language in Wis. Stat. § 808.03(2) and in Wis. Stat. § (Rule) 809.51(1) including "other person or body," is sufficiently broad in scope to permit the court of appeals to exercise supervisory jurisdiction over the actions of a judge presiding over a John Doe proceeding. Interpreting the constitution to allow for the court of appeals to exercise jurisdiction over the actions of a John Doe judge represents sound practice and is in keeping with the court of appeals' traditional role as an error-correcting court. See State ex rel. James L.J. v. Cir. Ct. for Walworth County, 200 Wis. 2d 496, 546 N.W.2d 460 (1996).

¶49. We emphasize, however, that writs stemming from John Doe proceedings should not become a vehicle for delaying a John Doe proceeding. Pursuant to Wis. Stat. (Rule) § 809.51(2), the court of appeals enjoys the discretion to deny a petition for supervisory writ ex parte, when warranted.

¶71. The party seeking review of a John Doe judge's decision shall file the petition for supervisory writ in the court of appeals, together with a motion seeking leave to file under seal any portions of the petition or record that fall within the scope of an existing secrecy order, but which the petitioner deems necessary to prosecute his or her petition. The State may respond to that motion. The court of appeals can then entertain the motion, and conduct an in camera review of the documents proposed to be filed under seal. If the documents appear to fall legitimately within the scope of a permissible secrecy order, the court may grant the motion and the documents will be filed under seal.

(State ex rel. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986) (COA not empowered to compel Elections Board to place name on ballot) limited to its facts and distinguished, principally on the ground that that case involved an administrative agency. ¶¶42-44. The Chief Justice plausibly suggests that the effect is to overrule Swan. ¶76. James, referenced above, has to do with review of a chief judge’s substitution ruling; for any other examples of judges sitting as a “tribunal” and not a “court” (thereby preventing review by ordinary appeal), Unnamed Persons would seem to apply. In any event, there may be less here than meets the eye. The fundamental question is whether the court of appeals had original jurisdiction to review an order by a judge as opposed to a court. But there’s nothing to say that you can’t first get review, by one manner or another, in a circuit court, as the dissent points out.)

Processing Appeals -- No-Merit Report

No-Merit Report – Counsel Appointed by Circuit Court Rather Than SPD
State v. Carl Davis Brown, Jr., 2009 WI App 169
For Brown: Paul G. Bonneson
For SPD: Colleen D. Ball, Milwaukee Appellate
Issue/Holding:
¶7        The statutes referenced in Wis. Stat. Rule 809.32(1)(a), relate to the appointment of counsel by the state public defender. Thus, pursuant to Rule 809.32(1)(a), an attorney appointed by the state public defender may file a no-merit report using the statutory scheme set out in Rule 809.32. Brown’s appellate counsel seeks to use the statutory procedure on Brown’s behalf even though the circuit court and not the state public defender appointed counsel for Brown. We agree that counsel may do so.

¶10      Accordingly, we hold that Brown and other indigent criminal defendants with court-appointed appellate lawyers may pursue appellate review in the court of appeals using the procedures in Wis. Stat. Rule 809.32 when appellate counsel concludes that an appeal would lack arguable merit. To the extent that the procedural posture of any particular defendant’s case hampers compliance with the statutory deadlines or other requirements contained in the Rule, counsel may move this court for appropriate relief. [4] See Wis. Stat. Rules 809.14, 809.82.

No-Merit Report – Generally
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding: (Procedure generally described, State v. Christopher G. Tillman, 2005 WI App 71, ¶17, quoted with approval, ¶¶18-23; see also ¶¶35-41, taking note of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000).)
Knight Habeas Petition: Collateral Attack on Prior No-Merit Affirmance
State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm
Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.
The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side, Rothering on the other. How do you know on which side to park? First, the background, briefly stated. The court of appeals affirmed Panama’s plea-based conviction and sentence in a prior, Rule 809.32 no-merit appeal. Subsequently, the same attorney who filed the no-merit report discerned a missed issue and filed this habeas, alleging that he was ineffective for overlooking the issue, which is as follows:
¶4        Panama entered a no-contest plea in accordance with a negotiated plea agreement. The plea agreement specified in relevant part, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.” Although that provision appears to be an agreement by the prosecutor to refrain from commenting on the length of the sentence the court should impose, at the sentencing hearing, the prosecutor argued: “The pre-sentence report asks that you impose ten years in prison. I concur with that recommendation because of the nature of the offense damage that’s been done to the victim.” Panama’s counsel did not object to this comment and the trial court imposed the recommended ten-year sentence.
The defect both appears in the original record and is pretty glaring (which, among other things, means that the court of appeals should have seen it while ruling on the no-merit appeal). Thus, the AG doesn’t now argue that the DA could agree to hold to her tongue and then without consequence advocate a specific outcome; that would be frivolous. Instead, the AG resorts to the hypertechnical defense that Panama filed the wrong paperwork: he filed a Knight (habeas) petition in the court of appeals, when he should instead have a filed a Rothering (§ 974.06) postconviction motion. To make matters worse, relevant caselaw on this procedural aspect, as the court of appeals charitably concedes, “create(s) inconsistencies,” ¶21. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992) says a claim of ineffective assistance of appellate counsel must be pursued by habeas petition filed in the court of appeals, while State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) says that a claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court. The distinctions can be arbitrary and the procedure therefore a trap for the unwary, as the court presently appears to recognize.
¶25      In sum, the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.
But now add another layer of complexity due to the particular and somewhat unusual context, because this is a collateral attack on a Rule 809.32 no-merit affirmance. The court of appeals has previously grappled with this problem. In what appears to be the first meaningful such go-around, the court decided that the defendant’s failure to respond to the no-merit report waived his subsequent attack on the effectiveness of his trial attorney’s representation; it then fell to the 7th Circuit to apply the law correctly, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”). The court next held that, at least where the defendant was raising an issue functionally identical to one affirmed by the prior no-merit appeal, the new challenge was procedurally barred, State v. Christopher G. Tillman, 2005 WI App 71, ¶24 (“Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels”). The last case in this trilogy, however, authorized a 974.06 attack on a sentence, notwithstanding a prior no-merit affirmance that failed to discuss that sentencing issue, in State v. Ricky J. Fortier, 2006 WI App 11.

That’s the backdrop, legally and factually. Panama filed a “Knight” petition, and the State argues that he should have instead filed a § 974.06 Rothering motion, as required (or so the AG argues) by Fortier. The court rejects that contention, holding that Fortier didn’t explicitly discuss ineffective assistance of counsel, just whether there was “sufficient reason” for overcoming the 974.06 serial litigation bar, Panama, ¶16 (“In other words, Fortier is best understood as concluding that counsel’s failure to raise an arguably meritorious issue in a no-merit report is a ‘sufficient reason’ under Escalona-Naranjo for the defendant’s failure to raise the issue in a response, thus preventing the no-merit procedure from serving as a procedural bar in a subsequent § 974.06 motion, regardless of whether counsel’s failure met both the deficient performance and prejudice standards of an ineffective assistance claim.”).

The court goes on to say that the “Knight” petition properly raised the matter of the overlooked issue, albeit under an ineffective-assistance rationale:

¶27      As in so many cases that preceded this one, there are competing analyses which could be employed here. The fact that the plea breach issue was not preserved by a contemporaneous objection by trial counsel and that the arguably ineffective assistance of trial counsel was not preserved by postconviction counsel seems to place the case within the ambit of Rothering. In other words, because the claim is at its core an allegation that trial counsel failed to object to a plea agreement breach, the circuit court would seem in the best position to evaluate the issue. But unlike the direct appeal situation in Rothering, a no-merit proceeding also afforded appellate counsel the opportunity to explain why certain issues would lack arguable merit because they have been waived. Such discussion, in turn, would have provided this court with an opportunity to consider whether the waiver might be one which should be excused in the interests of justice, or whether there exists a viable claim of ineffective assistance of trial counsel. Therefore, in the no-merit context, there could be an argument that counsel provided ineffective assistance in both postconviction and appellate contexts by failing to preserve an issue, and then failing to bring the waived issue to this court’s attention. As to the failure in the no-merit context, this court is in the best position to evaluate the ineffective assistance challenge. We conclude that the deciding factor here is that the defendant is seeking, inter alia, to overturn this court’s no-merit decision and reinstate all of his postconviction rights. Under Knight, a writ of habeas corpus to this court is still the proper mechanism for seeking that relief.

¶28      Under Machner, however, we cannot resolve the present Knight petition until there has been a postconviction hearing at which factual findings are made regarding: (1) whether the plea agreement in fact required the State to refrain from recommending any particular length of prison time; and (2) whether trial counsel had any strategic reason for failing to object to the prosecutor’s recommendation of ten years in prison.

Presumably, then, Panama might have litigated this under a Fortier-type § 974.06 motion. (The court certainly doesn’t suggest otherwise; it does not, for example, purport to distinguish Fortier nor does it have the authority to overrule it.) Apparently, then, the court is saying that a “Knight” petition is a permissible, not exclusive, remedy – fine, but there’s nonetheless a certain amount of question-begging involved. As ¶¶27-28 suggest, the theory is that litigation of the no-merit report violated Panama’s right to effective assistance of counsel. This approach, however, is flawed at the conceptual level. A no-merit report is, in essence, a motion to withdraw as counsel; the court must conduct its own, independent scrutiny of the record to determine whether it will grant the motion. It is true that counsel in this instance should have instantly perceived the issue. But recall that the issue was quite apparent in the record, so that the court should have discerned it. “Should have,” in any event, if it had properly discharged its own duty to make an independent determination of the existence of any arguable issue appearing in the record. The court thus erred in its own right, and its failure to carry out its mandated duty is a “sufficient reason,” to the extent one is necessary, to ignore the serial litigation bar. In other words, Fortier would have provided all the ammunition Panama needed for a 974.06 motion (as opposed to a habeas). Under a Knight habeas, the defendant-petitioner has the additional burden of showing that appellate counsel was ineffective. (Recall the court’s acknowledgement, ¶16, that Fortier did not rest on an IAC claim.) Won’t be a problem in this case, seemingly, but why take on that extra burden if you don’t have to? On the other hand, there are certainly advantages flowing from a successful Knight petition. Reinstatement of 809.30, direct-appeal rights, which would of course lead to plenary review of any and all potential issues, for one; reinstating the deadline for a 2254 habeas (though this is a highly technical area and the practitioner must proceed with great caution). Contrastingly, a Rothering motion is limited to the issue(s) raised by the motion (which have to be constitutional or jurisdictional by definition), and the circuit court lacks authority to reinstate the direct appeal. So, there are potentially complex tactical considerations at the very outset.
No-Merit Report – Defendant’s Right to Access PSI
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶30      We reject Parent's contention that Wis. Stat. § (Rule) 809.32(1)(d) confers an unqualified right for a no-merit appellant to access personally the PSI report. …

¶31      But neither are we persuaded by the State's argument, which would place the onus on the defendant to demonstrate a "substantial need" for the PSI report without knowing (or recalling) its contents. …

¶35      We conclude that permitting a defendant in a no-merit appeal access to the PSI report is consistent with the design and purpose of the no-merit procedure. …

¶43      Accordingly, under Wis. Stat. §  972.15(4m) (2005-06), we conclude that a defendant subject to the no-merit procedure may view a copy of the PSI report but may not keep a copy of it. This opportunity to view the report must be meaningful; the defendant should have sufficient time to conduct a thorough review of the document and, if the defendant has made a timely request to view the PSI report, the viewing should occur soon enough to give the defendant time to incorporate material from the PSI report in the defendant's response to the no-merit report.

¶45      Consistent with the requirements of Wis. Stat. § 972.15(3), we hold that a defendant subject to a no-merit appeal must notify the circuit court of the defendant's desire to view the PSI report to permit the judge to review the PSI report and to redact as the judge deems appropriate identifying information of persons who provided information for the report and information that may be confidential under other law not discussed here. The circuit court's exercise of discretion is limited under the statute to redacting, as it deems appropriate, identifying information of persons who provided information and information that may be confidential under other applicable law. Under § 972.15(4m) (2005-06), the circuit court may not deny altogether the defendant's request to view a copy of the PSI report.

Presentence Report -- Attorney General’s Right of Access, No-Merit Appeal
State v. Michael J. Parent, 2006 WI 132, on certification
For Parent: William E. Schmaal, SPD, Madison Appellate
Amicus: Meredith J. Ross & William E. Rosales
Issue/Holding:
¶49      We conclude that the attorney general comes under the purview of Wis. Stat. § 972.15(4) and (4m) (2005-06) because, in criminal appeals, the attorney general is often the State's successor to the district attorney. … We therefore conclude that under §§ 972.15 and 967.02(7) the attorney general's office should submit any requests to obtain a copy of the PSI report and to disclose its contents in the State's brief to the circuit court for the purposes of a no-merit appeal.
No-Merit Report -- Client's Options
State ex rel. Perry Van Hout v. Endicott, 2006 WI 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak
Issue/Holding:
¶23      Where a defendant has specifically directed counsel not to file a no-merit report after being advised of his or her options, counsel is not free to ignore the defendant’s direction. We discussed the nature of the attorney-client relationship in State v. Divanovic, 200 Wis. 2d 210, 224-25, 546 N.W.2d 501 (Ct. App. 1996) (citations and footnotes omitted):
Supreme Court Rule 20:1.2 (West 1996) entitled “Scope of Representation,” recites, in part, that “A lawyer shall abide by a client’s decisions concerning the objectives of representation.” However, the comment that follows provides that such limits on the objectives of representation must follow consultation between the lawyer and the client.  SCR 20:1.2 cmt. This consultation requirement was followed in this case as our discussion on the previous issue demonstrates. Thus [counsel] was ethically bound to abide by Divanovic’s instructions.

The case law is in accord. The attorney-client relationship is one of agent to principal, and as an agent, the attorney must act in conformity with his or her authority and instructions and is responsible to the principal if he or she violates this duty. A defendant who insists on making a decision which is his or hers alone to make in a manner contrary to the advice given by the attorney cannot subsequently complain that the attorney was ineffective for complying with the ethical obligation to follow his or her undelegated decision. [5]

The record in this matter reveals that Van Hout and Maroney consulted about his postconviction options, and Van Hout exercised his right to decline a no-merit report. Under Divanovic, Maroney was not free to ignore Van Hout’s wishes, and she properly put the issue before this court via a motion to withdraw.

¶37      If a defendant does not want a no-merit report, the defendant has three choices: fire counsel and proceed pro se, fire counsel and hire private counsel if financially feasible, or direct that the file be closed. But a defendant cannot simply insist that appointed counsel pursue an advocacy appeal under Wis. Stat. Rule 809.30 despite counsel’s view that such an appeal would lack arguable merit. Jones v. Barnes, 463 U.S. 745, 751-53 (1983) (counsel must exercise professional judgment in the manner in which he or she represents the defendant). And, a defendant cannot alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written. Finally, a defendant cannot forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from the representation. We will not allow a defendant to play games in order to get something that the defendant is not entitled to have or to engage in an endless go-round with this court over the course of postconviction proceedings. That is what is going on here, and we will not play that game.

The case does not involve the current no-merit rule, whose wording in pertinent part is as follows, 809.32(1)(b)2: “The attorney shall inform the person that a no-merit report will be filed if the person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. …” The court notes the changed wording and expressly says that “it is not necessary for us to discuss the current rule in the context of this habeas petition,” ¶25 n. 6. Still, the new wording seems to make a no-merit report the “default” option; the client can “reject” it all day long, but if he or she doesn’t very clearly and unequivocally “consent” to having the file closed then a no-merit report will be the outcome of the representation. The court has now potentially thrown this construction into doubt with unnecessarily broad language about the client’s right to issue imperatives to counsel. The only authority cited for the unembellished proposition that “counsel is not free to ignore the defendant’s direction” is Divanovic. The latter is an odd little case; fodder for law review articles and ethics treatises but not the sort of case that you’d want to cite expansively. Divanovic repeatedly refused to come out of his cell for court appearances and emphatically instructed counsel “not to participate in the proceedings.” Counsel duly obliged, which meant that in effect the trial was conducted without adversarial representation. The result in that case may or may not have been the correct one. (Really: what would you be inclined to do if your client insisted that you sit on your hands? There isn’t an easy answer. Either deny client autonomy or deny necessity of your function.) But that situation isn’t the same as processing a no-merit appeal, nor is one circumstance self-evidently comparable to the other. Yet the court uncritically cites Divanovic for the idea that counsel must abide by the client’s directive, and then uncritically yokes Van Hout to that principle. That principle simply can’t be correct in its broad formulation, because it would entirely do away with the idea that the great majority of litigation decisions are delegated to counsel. The client can’t tell you how (or even whether) to examine a particular witness, for one obvious example. The key qualifier is found in Divanovic itself, but stressed by neither that court nor this one, and it relates to the defendant’s “making a decision which is his or hers alone to make.” In Divanovic the court apparently assumed without discussion that whether or not to contest the state’s case at all was the defendant’s right alone to make. That might be correct, though it’s an awfully brazen assumption. And perhaps the court in Van Hout similarly assumed that the decision whether to authorize a no-merit report is the defendant’s alone. If so, then the current rule is in doubt. Or it may be that the court mis-read Divanovic whose language is indeed perniciously broad. We’ll see.
No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked
State v. Ricky J. Fortier, 2006 WI App 11
Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:
¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.  …

¶23      In this case, it is, as mentioned, undisputed that Fortier was informed by his appellate counsel of his right to file a response to the no-merit report and that Fortier did not file a response. See Wis. Stat. Rule 809.32(1)(e). …

¶24      However, it is now evident that the issue of a sentence illegally increased at sentencing, which was eventually raised by Fortier in a motion to reduce sentence on October 1, 2004, is indeed an issue of arguable merit. The issue was hence overlooked not only by Fortier, but also by his appellate counsel, who filed the no-merit report addressing only the issue of erroneous exercise of sentencing discretion and concluding that no issues of arguable merit remained, and by this court, that agreed with the no-merit report.

¶27      … We therefore conclude that the no-merit procedures, under Anders and Wis. Stat. Rule 809.32, were not followed in this case, and agree that Fortier’s appellate counsel and this court should have identified the raised sentence at resentencing as an issue of arguable merit. See Tillman, 281 Wis. 2d 157, ¶20. Because we cannot fault Fortier for his reliance on his appellate counsel’s assertion in the no-merit report that there were no issues of arguable merit, we are satisfied that Fortier has shown a “sufficient reason” for failing to raise the issue in a response to the no-merit report. Wis. Stat. § 974.06(4); Escalona, 185 Wis. 2d at 181. Accordingly, Fortier is not procedurally barred from raising the issue of a sentence illegally raised.

OK, so now we know that when counsel and the court overlook an arguably meritorious issue, it’s not fair to use the no-merit procedure to establish a serial litigation bar. Fair enough. But that still makes this result fact-contingent. The court takes note of Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000) (clerk’s notification of right to file response to NMR doesn’t convey sense of obligation, thus failure to file response doesn’t amount to litigation bar), ¶¶22. But in a previous ruling, the court held that where the defendant indeed responds, Wilkinson is distinguishable and the bar applies, State v. Christopher G. Tillman, 2005 WI App 71, ¶20 n. 5. However, there is authority broadly establishing the idea that, at least with regard to an ineffective assistance claim, failure to raise such a claim in the response to the NMR establishes no bar, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”). Whether that logic would apply to any and all claims might be a nice question. About all that can be said with certainty is that if an arguably meritorious issue has been overlooked in the NMR appeal, it can nonetheless be raised later; and same for an IAC claim (on federal habeas, anyway).
No-Merit Appeal: Generally
State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se
Issue/Holding:
¶16. The no merit appeal procedure has its genesis in Anders v. California, 386 U.S. 738 (1967), and is codified in Wis. Stat. Rule 809.32. … Any motion to withdraw pursuant to Anders "necessarily implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d 347, 351 (7th Cir. 2000).

¶17 Wisconsin Stat. Rule 809.32 incorporates the no merit procedure set forth in Anders, as well as setting forth more detailed requirements. First, appointed counsel examines the record for potential appellate issues of arguable merit. See Rule 809.32(1)(a) ("The no merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit."). Next, the defendant has the opportunity to respond to the no merit report and raise additional issues. Rule 809.32(1)(e). Next, as contemplated by Anders, the appellate court not only examines the no merit report but also conducts its own scrutiny of the record to see if there are any potential appellate issues with arguable merit. See Anders, 386 U.S. at 744-45. Finally, the court's no merit decision sets forth the potential appellate issues and explains in turn why each has no arguable merit.

¶18 … As noted earlier, the no merit process "necessarily implicates the merits of an appeal" because the premise of appellate counsel's motion to withdraw following the filing of the no merit report "is that the appeal is frivolous." Wilkinson v. Cowan, 231 F.3d at 351. "This can only be understood as a merits-based decision with respect to each of the claims raised in the petition." Id.

A no-merit report, as these passages make clear, is in both form and effect a motion to withdraw. Very much unlike pre-conviction stages, formal withdrawal isn’t always necessary on postconviction review – take a look at State ex rel. Richard A. Ford v. Holm, 2004 WI App 22; and at discussion here – but (without getting into a detailed discussion) – as presently written, § 809.32 is reasonably read as making no-merit procedure as the default position. In other words, unless you are absolutely sure that the client has unequivocally consented to informal closure of the case without any action then a no-merit report is in order. Note that this is merely an interpretation, not something the court has addressed one way or the other, and take that into account. One noteworthy point the court does explicitly make is that a no-merit appeal “necessarily implicates the merits of an appeal.” This is something of an overstatement; might have been better to say, necessarily implicates the merits of an appeal on the current record. What about matters not in the record (paradigmatically: an effective-assistance claim)? This is too knotty a problem to discuss here, except to say that taken at face value, the court’s sweeping generalization is highly problematic; and to add that at least on the facts of this case there is no reason to extend the statement, generalized though it is, to extra-record situations.
Serial Litigation Bar (Escalona-Naranjo): Applicable to No-Merit Report, § 809.32 (Anders Appeal)
State v. Christopher G. Tillman, 2005 WI App 71
Tillman, pro se
Issue/Holding:
¶2. The issue on the instant appeal is whether the procedural bar of Escalona-Naranjo may be applied when a prior appeal was processed under the no merit procedure set forth in Wis. Stat. Rule 809.32. For the reasons stated below, we conclude that the procedural bar of Escalona-Naranjo, as codified in Wis. Stat. § 974.06(4), may be applied in the appropriate case. We further hold under facts and history of this case that the issues in Christopher Tillman's current appeal are subject to the procedural bar of Escalona-Naranjo.

¶19 We therefore reject any notion that the no merit procedure is too perfunctory as a matter of law to permit the application of Wis. Stat. § 974.06(4). We conclude that when a defendant's postconviction issues have been addressed by the no merit procedure under Wis. Stat. Rule 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in the previous motion, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

¶20 In making this pronouncement, we stress that the procedural bar of Escalona-Naranjo is not an ironclad rule. State v. Crockett, 2001 WI App 235, ¶¶7-8, 248 Wis. 2d 120, 635 N.W.2d 673 (an issue waived under Escalona-Naranjo may still be addressed by the court in its discretion); see also State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (waiver is a rule of judicial administration, not jurisdiction and courts have discretion to make exceptions). We also recognize that a no merit appeal is a different breed of appeal because, while Anders envisions counsel acting as an advocate, the fact remains that counsel ultimately concludes that there are no issues of arguable merit. See Anders, 386 U.S. at 744-45. Therefore, in considering whether to apply the procedural bar of Escalona in a given case, the court (both trial and appellate) must pay close attention to whether the no merit procedures were in fact followed.5 In addition, the court must consider whether that procedure, even if followed, carries a sufficient degree of confidence warranting the application of the procedural bar under the particular facts and circumstances of the case.


5   For instance, in Wilkinson v. Cowan, 231 F.3d 347 (7th Cir. 2000), the court held that the defendant was not procedurally barred from raising a claim of ineffective assistance of counsel even though he had procedurally raised the issue because "he was not invited to file a response [to the no merit report] and he did not do so of his own initiative." Id. at 349. While the clerk of the federal district court advised the defendant that he could respond to the no merit report, this notification did not advise that a response was a matter of right and a matter of obligation if the defendant wanted to preserve his claim for further review. Id. at 351. Here, however, Tillman filed a response to the no merit report.
The court goes on to say that Tillman’s claims are barred because they were resolved in the prior no-merit appeal: “This court's prior no merit decision did not address Tillman's claims in terms of multiplicity and double jeopardy because Tillman did not couch his response in those terms. However, we did address the factual challenge underlying these present claims. … This history reveals that Tillman's current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels.” ¶¶23-24. Thus we find a great deal of potential for doctrinal mischief, because it simply wasn’t necessary for the court to discuss let alone reach the Escalona issue. And that is because once the court commits itself to the view (¶¶16-18) that a no-merit report “necessarily implicates the merits of the appeal,” then it can only follow that an issue already decided by the no-merit report (as in Tillman’s very instance) should be barred not by the somewhat technical, stilted Escalona doctrine, but barred instead by the much more basic notion of law of the case – see, e.g. Earnest L. White v. U.S., 371 F.3d 900 (7th Cir. 2004). And to the extent that Wisconsin adopts that court's view that a no merit appeal establishes law of the case, note that the doctrine is somewhat flexible -- see cases discussed below, and scroll down: "Binding Authority -- Law of the Case". Keep in mind, too, established authority that defendant’s failure, in response to the no-merit report, to raise an ineffective-assistance claim does not waive that issue for purposes of federal habeas review, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003). (Cautionary note: that case arose under the prior version of § 809.32. Whether that holding would be viable under the current version raises a nice question, see discussion here (scroll down to Page summary); but the point is precisely that the court shouldn’t have triggered such knotty questions with its sweeping language, but should instead have simply relied on an already-decided, now-barred analysis. Much more mundane a discussion, to be sure, but no less accurate a result.

Processing Appeals -- Mootness

Mootness – Reconfinement Proceeding
State v. Clayborn L. Walker, 2008 WI 34, reversing 2007 WI App 142
For Walker: Amelia L. Bizzaro
Issue/Holding:
¶14      As a preliminary matter, while the issue before the court is moot because Walker has completed his reconfinement term and thus our decision will not affect the underlying controversy, we may at times consider a moot issue if it is of "great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts." State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis.  2d 24, 692 N.W.2d 219. Because circuit courts regularly preside over reconfinement hearings, we review the issue at hand even though it is moot.
Mootness: Release of Sought-After Open Record
Portage Daily Register v. Columbia Co. Sh. Dept., 2008 WI App 30
Issue/Holding:
¶8        We will generally not consider issues that are moot on appeal. See Hernandez v. Allen, 2005 WI App 247, ¶10, 288 Wis. 2d 111, 707 N.W.2d 557. However, the present appeal is not moot because our ruling will have the practical effect of determining the Register’s right to recover damages and fees under Wis. Stat. § 19.37(2)(a) [4] based upon the Sheriff’s Department’s denial of its request. Moreover, we make exceptions to the general rule in cases where the issue is of great public importance; the identical issue arises frequently and a decision is needed to guide trial courts; the issue will likely arise again and should be resolved; the issue is likely of repetition yet evades review; or it involves a statute’s constitutionality. See State v. Leitner, 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341. We view the issue in the present case as sufficiently important and capable of evading review that it warrants review even if it were moot. Thus we proceed to the merits of the parties’ arguments.
Mootness: Juvenile Extension Order
State v. Michael S., 2005 WI 82, reversing unpublished decision
For Michael S.: Susan Alesia, SPD, Madison Appellate
Issue/Holding:
¶6 Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. [3] A court may decide a moot issue when the issue is of great public importance; occurs frequently and a definitive decision is necessary to guide the circuit courts; is likely to arise again and a decision of the court would alleviate uncertainty; or will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

¶7 The question presented in this case seems to satisfy all these exceptions to the mootness rule. Deciding a circuit court's retention of authority over a juvenile after the expiration of a dispositional order is a matter of great importance to the sound operation of the judicial system and the rights and interests of juveniles.

¶8 We will therefore address the issue presented in the instant case.

Mootness: Revocation, Discharge from Custody
State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella
Issue/Holding:
¶11. Since granting the petition for review in this case, we have determined that the issue presented is moot as to Riesch. "An issue is moot when its resolution will have no practical effect on the underlying controversy." State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. Riesch's issue satisfies this definition because he has been discharged from the conviction underlying his parole revocation, and that revocation did not delay the start of the probationary term he is now serving.

¶12. Appellate courts generally decline to consider moot issues but may do so under certain circumstances. State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349. For example, this court has held that it may decide an otherwise moot issue if it is of great public importance or arises frequently enough to warrant a definitive decision to guide the circuit courts. Id. (citing In re John Doe Proceeding, 2003 WI 30, ¶19, 260 Wis. 2d 653, 660 N.W.2d 260). In this case, the issue presented falls within these exceptions, and therefore, we reach its merits.

Mootness
State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth
Issue/Holding:
¶7 Reviewing courts generally decline to decide moot issues but may do so under certain circumstances. This court has held that it may decide an otherwise moot issue if it: (1) is of great public importance; (2) occurs so frequently that a definitive decision is necessary to guide circuit courts; (3) is likely to arise again and a decision of the court would alleviate uncertainty; or (4) will likely be repeated, but evades appellate review because the appellate review process cannot be completed or even undertaken in time to have a practical effect on the parties.

¶8 We conclude that the sole issue proposed to be addressed, that is, the appropriate mechanism for changing the supervised release status of a chapter 980 committee who has been determined to be appropriate for supervised release but who remains institutionalized and awaiting placement, satisfies several exceptions to the mootness rule.

Followed, State v. Shawn D. Schulpius, 2006 WI 1, ¶¶15-16.
Mootness -- General
State v. Lindsey A.F., 2003 WI 63, affirming 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116
For Lindsey A.F.: Eileen Hirsch, SPD, Madison Appellate
Issue/Holding: ¶7 n. 5:
As a general rule, this court will not consider an issue which will not have any practical effect upon an existing controversy. State v. Leitner, 2002 WI 77, ¶13, 253 Wis. 2d 449, 646 N.W.2d 341 (citing State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Co., 15 Wis. 2d 220, 228, 340 N.W.2d 460 (1983)). However, moot cases may be decided in a variety of circumstances, including where the issues are of great public importance or should be resolved to avoid future uncertainty. Leitner, 253 Wis. 2d 449, ¶14.
Mootness -- Delinquency -- Expired Dispositional Order
State v. Stephen T., 2002 WI App 2
For Stephen T.: Raymond M. Dall'Osto
Issue: Whether appeal of a juvenile delinquency adjudication is rendered moot by expiration of its dispositional order.
Holding: No, at least in this instance: certain facets of the order (DNA sample; sex offender registration) survive, and appellate review will therefore have a practical effect. ¶11. (The court doesn't say whether its mootness holding is limited to offenses that incur these particular consequences.) Moreover, the case presents an issue of great public importance likely to recur (namely, "whether a ten-year-old may be inferred to possess the same specific intent to become sexually aroused or gratified as an adolescent or adult"), an exception to the mootness doctrine. Id.
See also A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04 (federal habeas challenge to expired state court juvenile adjudication not moot, largely because adjudication could be used as aggravator, and therefore increase potential punishment).
Mootness
State ex rel. Larry E. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425
For Olson: Dennis Egre, SPD, Kenosha
Issue: Whether this case is moot, where the challenge is to the authorities' failure to parole a prisoner at his mandatory release date, but he was released during the pendency of the case.
Holding: Although Olson's release rendered the case moot, recognized exceptions to mootness are present, namely, issue of "great public importance"; constitutional issue; trial courts' need for guidance. "Furthermore, we take up moot questions where the issue is 'likely of repetition and yet evades review' because the situation involved is one that typically is resolved before completion of the appellate process." ¶3.
Go to Brief

Processing Appeals -- Ordinance Violations

Ordinance Violations - Trial De Novo in Circuit Court After "Trial" in Municipal Court
City of Pewaukee v. Thomas L. Carter, 2004 WI 136, reversing 2003 WI App 260
For Carter: Rex Enderegg
Issue/Holding:
¶3 … Did the municipal court proceeding constitute a "trial" under § 800.14(4) when the City presented sworn witnesses, those witnesses were cross-examined by the defendant, and the case was dismissed with prejudice upon the defendant's motion to dismiss at the close of the City's case-in-chief?

¶4. We conclude that the municipal court proceeding in the present case constituted a trial under Wis. Stat. § 800.14(4) because the City presented its case, the defendant had an opportunity to present his evidence (even though he chose not to do so), and the matter was judicially resolved on its merits. We therefore conclude that the municipal court proceeding in the instant case triggered the City's statutory right to a new trial under Wis. Stat. § 800.14(4). Accordingly, we reverse the decision of the court of appeals and the order of the circuit court and remand the cause to the circuit court to grant the City's request for a new trial.

Village of Menomonee Falls v. Meyer, 229 Wis. 2d 811, 601 N.W.2d 666 (Ct. App. 1999) (pretrial municipal court dismissal not “trial,” therefore wouldn’t support request for new trial in circuit court), distinguished, ¶¶30-36; although that case is apparently left viable on its facts, language from that opinion is withdrawn:
¶46. It is apparent that the court of appeals' use of the words "fully litigated" and "full trial" has led and may lead to confusion. Accordingly we withdraw the language in Meyer requiring that a case be "fully litigated," or that there be a "full trial" in municipal court in order for a municipal proceeding to constitute a trial.
Additionally, the court raises, but leaves open, the question of whether ch. 805 applies to municipal court proceedings. ¶45 n. 36. Note, as well, that request for “new trial” isn’t the only way to go from municipal to circuit court: you can also appeal under § 800.14(1), and in certain cases bypass municipal court altogether under § 800.04(1)(d), see ¶11, procedures not discussed by this opinion.

Processing Appeals -- Postconviction Motions

Postconviction Motions - § 974.06, Supports Sufficiency-of-Evidence Review
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.
The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.
Postconviction Motions -- § 974.06, Supports Interest-of-Justice Review by Supreme Court
State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck
Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled. But this leaves open possibility that supreme court's authority in this context is broader than court of appeals'.)
Postconviction Motions -- § 974.06, Serial Litigation Bar, Penalty Enhancer Exception
State v. Thomas A. Mikulance, 2006 WI App 69
Pro se
Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1, 16. Thus, although § 973.13 (sentence exceeding maximum penalty valid only to extent of statutorily authorized maximum) may be invoked in these circumstances to avoid the serial litigation bar, it may not be utilized simply to challenge the procedure under which a guilty plea was taken.
¶18      Simply stated, unlike the defendant in Flowers, Mikulance does not raise a proper Wis. Stat. § 973.13 claim. Section 973.13, as it pertains to sentencing a repeat offender, applies only when the State fails to prove the prior conviction necessary to establish the habitual criminal status (by proof or by admission) or when the penalty given is longer than permitted by law for a repeater. See Flowers, 221 Wis. 2d at 28-29; see also State v. Spaeth, 206 Wis. 2d 135, 155-56, 556 N.W.2d 728 (1996). Mikulance makes neither of these arguments. He does not argue that the court sentenced him to prison for more time than the enhancement statute permits nor does he argue that the sentence was based on lack of proof by the State or lack of an admission by him that the prior conviction existed.

¶19      Instead, Mikulance mounts a constitutional challenge to the procedure the court used to accept his no contest pleas. In his most recent postconviction motion, Mikulance argues that the circuit court failed to inform him of the maximum penalties for the substantive charges of battery, disorderly conduct and unlawful use of a telephone and of the penalty enhancements attributable to his conviction as a habitual criminal. Mikulance cannot use Wis. Stat. § 973.13 to raise this type of claim. Therefore, the narrow exception articulated in Flowers for claims properly brought under § 973.13 does not apply.

Postconviction Motions -- § 974.06, Serial Litigation Bar
State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105
For Kaster: Robert R. Kaster
Issue/Holding:
¶9 Kaster next argues that the evidence was legally insufficient to sustain the disorderly conduct charge. .... Kaster has not demonstrated a “sufficient reason” under § 974.06(4) to overcome the fact that he failed to raise his challenge on direct appeal. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-84, 517 N.W.2d 157 (1994). Thus, Kaster is procedurally barred from raising the disorderly conduct conviction now.
Postconviction Motions -- § 974.06, Serial Litigation Bar
State v. Tommie Thames, 2005 WI App 101
Pro se
Issue/Holding:
¶12      We conclude that Thames’s arguments are procedurally barred. Thames has raised essentially the same issues he raised in his direct appeal and in his 1997 Wis. Stat. § 974.06 motion. The fact that Thames’s appeal of the trial court’s order denying his 1997 § 974.06 motion was dismissed pursuant to Wis. Stat. § 809.83(2) (1997-98) [6] does not change the result. When no appeal is taken, all provisions of a judgment, and the findings and conclusions upon which it is based, are conclusive and binding upon all parties to the litigation. Kriesel v. Kriesel, 35 Wis.  2d 134, 138, 150 N.W.2d 416 (1967). The result is the same where, as here, a party filed a notice of appeal but failed to file a brief after repeated extensions, resulting in a dismissal of the appeal pursuant to § 809.83(2). [7]
§ 974.06 – Viability of Escalona-Naranjo
State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals; habeas relief denied, Lo v. Endicott, 7th Cir No. 06-3948, 10/26/07
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School
Issue/Holding:
¶2. The petitioner, Anou Lo, asks that we overrule our decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (Escalona), in which we held that any claim that could have been raised on direct appeal or in a previous Wis. Stat. § 974.06 (1999-2000) postconviction motion is barred from being raised in a subsequent § 974.06 postconviction motion, absent a sufficient reason….

¶15. Although our decision in Escalona discussed the origins and purpose of § 974.06, see Escalona, 185 Wis. 2d at 176-178, 181-182, we take this opportunity to augment that discussion and reinforce our holding that claims of error that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 motion, absent a showing of a sufficient reason….

¶44. Consequently, we reaffirm our holding in Escalona that all claims of error that a criminal defendant can bring should be consolidated into one motion or appeal, and claims that could have been raised on direct appeal or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 postconviction motion absent a showing of a sufficient reason for why the claims were not raised on direct appeal or in a previous § 974.06 motion. Escalona, 185 Wis. 2d 168.

Not much point in tracking the court’s discussion which, after all, ratifies a decision that’s been on the books nearly a decade. One oddity, though: the court criticizes Lo’s construction because it “would permit a defendant to consciously skip grounds for relief on direct appeal and then raise them in a § 974.06 motion.” But a few paragraphs later the court apparently adopts just that construction: “Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal.” ¶44 n. 11, citing Loop for the idea that pretermitting direct appeal throws you outside of Escalona. The point isn’t to criticize the court for a bit of analytical inconsistency, but to suggest that a serial litigation bar does not apply to a § 974.06 motion where no direct-appeal remedy was previously invoked. It’s also worth mentioning that the court granted review for the express purpose of dealing with Escalona blowback, see Dissent, ¶90 n. 1 – everyone agrees that the case has added costs to postconviction procedure without compensatory benefits [defendants now must raise IAC claims against postconviction and appellate counsel to establish the requisite “sufficient reason”; and trial and appellate courts, often at the same time in the same case must separately review those claims]; what should be done? The court holds the question open: “we defer judgment with the intent of seeking new opportunities to review the issue.” ¶57. Is that a good thing? Well, not necessarily when you consider that the court has just rejected the most sensible fix, overruling Escalona, which leaves the AG’s fix on the table – in part, a limitation period of one year for filing the collateral attack; though in fairness, other aspects of the AG’s approach make sense but won’t be detailed here. If you find yourself on the receiving end of a one-year bar you may want to reacquaint yourself with Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997) which, though not precisely on point, may inhibit the retroactive application of such a bar.
§ 974.06 Serial Litigation: Defendant Represented by Trial Counsel on Prior, Direct Appeal
State v. Spriggie Hensley, Jr., 221 Wis. 2d 473, 585 N.W.2d 683 (Ct. App. 1998)
For Hensley: Pro se
Issue/Holding: The rule that a defendant's representation by the same attorney at trial and on direct appeal constitutes a "sufficient reason" for not asserting ineffective assistance of counsel in the direct appeal survives State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994).
§ 974.06 -- "Custody" Requirement -- Fulfilled Where Defendant on Probation
State v. Donald Mentzel, 218 Wis. 2d 734, 581 N.W.2d 581 (Ct. App. 1998)
For Mentzel: Raymond M. Dall'Osto
Issue/Holding:
We agree with the logic of Napoles. For purposes of § 974.06, Stats., the reality of a probationary status is that it results directly from the trial court's consideration of dispositional alternatives at a sentencing hearing. Subject to any other bars, we conclude that all defendants on probation have standing to pursue postconviction relief under § 974.06.
Counsel -- Waiver -- Necessity for Evidentiary Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding:
¶15. When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the trial court's judgment, the court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent and voluntary....

¶16. We conclude that the trial court conducted an adequate colloquy that demonstrates that Polak's waiver of the right to counsel was knowing, intelligent and voluntary; therefore, an evidentiary hearing on this issue was unnecessary.

Defendant's Presence at Postconviction Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.
Defendant's Presence at Postconviction Hearing
State v. William L. Brockett2002 WI App 115, PFR filed 5/17/02
For Brockett: Hans P. Koesser
Issue/Hearing: The defendant's right to personal presence at a postconviction evidentiary hearing hinges on the existence of substantial issues of fact in which the defendant participated. Here, there was a substantial dispute, but it related to a "side issue," and the defendant therefore had no right to be present in person. ¶¶20-21.
Postconviction Procedure – Discovery, Generally
State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz
Issue/Holding:
¶8        A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis.  2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion. Id.
Postconviction Procedure – Discovery, Privileged Material, Generally
State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz
Issue/Holding: To obtain postconviction discovery of privileged material (here: victim’s medical and toxicology records), the defendant must first convince the court to inspect the material in-camera by showing a reasonable likelihood it is relevant, non-cumulative information necessary to guilt or innocence, ¶¶9-10, citing State v. Frederick Robertson, 2003 WI App 84 and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as clarified by State v. Johnny L. Green, 2002 WI 68.
Postconviction Procedure – Discovery, Privileged Material - Insufficient Showing for In-Camera Inspection of Victim’s Toxicology Report
State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz
Issue/Holding: Where the defendant was convicted of injury by intoxicated used of motor vehicle, he made an insufficient showing for postconviction discovery of the victim’s (privileged) toxicology information in an effort to show he might have been partially responsible for the accident, ¶¶11-14 (no evidence alcohol was found in the victim’s vehicle or that the victim might have been impaired or that a toxicology report on the victim was even prepared). Therefore, the defendant isn’t entitled to in-camera inspection, the first step for release of privileged material.
Nor is the defendant entitled to an evidentiary hearing on the possibility that testing evidence in the state’s possession could lead to exculpatory information, ¶¶17-21. (“Here, Kletzien seeks an evidentiary hearing not to determine whether the evidence he seeks is relevant, but rather, to determine whether any of the testing could possibly lead to exculpatory evidence or lead to a reasonable probability that the outcome of the proceedings would be different,” ¶19.)
Discovery -- DNA Testing, at Defendant's Own Expense, § 974.07(6)
State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding:
¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material, if the movant meets several statutory prerequisites. First, the movant must show that the evidence meets the conditions under Wis. Stat. § 974.07(2). Second, the movant must comply with all reasonable conditions imposed by the court to protect the integrity of the evidence. Third, the movant must conduct any testing of the evidence at his or her own expense. If a movant seeks DNA testing at public expense, the movant must proceed under § 974.07(7)(a) or (b), and satisfy the heightened requirements in subsection (7).
There are three required showings under subs.(2): relevance of requested material; government’s possession of requested material; and no prior DNA testing of material (or, testing by less sophisticated method than now available), ¶42. If those hurdles are passed, then the material may be tested at defendant’s expense, with the judge authorized to set testing conditions under subs.(6)(c), ¶43. After testing is accomplished, the judge determines if the results support the claim for relief and, if so, then an evidentiary hearing will be conducted, ¶47. The court, it should be noted, is troubled by the idea that § 974.07 permits greater access to testing for solvent defendants:
¶56 The harsh reality of life is that some persons who have been convicted of crime may have the means to hire attorneys or investigators post-conviction under circumstances that would never justify the expenditure of public money. The court is being asked in this case to prevent a person from conducting DNA testing at his own expense. We are unable to discern from the plain language of § 974.07 a clear legislative intent to block testing demanded by a person willing and able to pay until that person satisfies the requirements for publicly funded DNA testing. We encourage the legislature to revisit Wis. Stat. § 974.07 to define undefined terms, set limits to the evidence that must be provided, and give courts clear guidelines in procedure.
Real as this concern of resource-based access certainly is, it is entirely possible that it is beyond legislative authority to fix -- that is because of a growing possibility that postconviction access for the purpose of testing at the convict's expense may well be raised under 42 USC § 1983: Osborne v. District Attorney's Office, 9th Cir No. 04-35126 (1983 supports prisoner's postconviction request to compel state authorities to provide access to biological material for prisoner's DNA testing), cert granted, 11/3/08. ; McKithen v. Brown, 2nd Cir No. 03-0168, 3/13/07. This issue has certainly split those federal courts to address the issue. In all likelihood the issue will be raised with increasing frequency, and it is best to keep a close eye on the trend-line. It should also be kept in mind that Wisconsin, as well as federak, courts have jurisdiction over 1983 claims, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977).
Discovery -- (Independent) DNA Testing, § 974.07(6)(a)
State v. Kenneth A. Hudson, 2004 WI App 99
For Hudson: David D. Cook
Issue/Holding:
¶11. Hudson first argues that under Wis. Stat. § 974.07(6)(a), the State must "make available" physical evidence containing biological material for independent DNA testing. Subsection (6)(a) states:
Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:

1.  Findings based on testing of biological materials.

2.  Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material. (Emphasis added.)

¶12. In the trial court, the State argued, and the court agreed, that Wis. Stat. § 974.07(6) did not compel the State to turn over evidence for independent DNA testing but only required the State to provide a movant access to review the material in order to determine which specific items he or she would like tested pursuant to a subsequent court order under subsection (7). On appeal, the State has reversed its position and concedes the trial court erred by construing the statute to prevent independent testing of certain items at Hudson's expense, subject to protective conditions imposed by the trial court. See Wis. Stat. § 974.07(6)(c) ("Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of materials requested ... in order to protect the integrity of the evidence."). We accept the State's concession and, therefore, do not address this issue further.
Discovery -- (Court-Ordered) DNA Testing, § 974.07(7)
State v. Kenneth A. Hudson, 2004 WI App 99
For Hudson: David D. Cook
Issue/Holding:
¶13. Hudson also argues he is entitled to court-ordered DNA testing under Wis. Stat. § 974.07(7)(a). Subsection (7)(a) requires the trial court to order DNA testing when the following four conditions are met:
A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:

   1.  The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).

   2.  It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

   3.  The evidence to be tested meets the conditions under sub. (2) (a) to (c).

   4.  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

The trial court found, and the State argues on appeal, that Hudson could not establish the second condition. In light of the overwhelming evidence supporting Hudson's guilt, the court concluded it was not reasonably probable that Hudson would not have been convicted even if the supposed "exculpatory" DNA testing results showed animal blood. We agree.
Discovery -- Privileged Records
State v. Frederick Robertson, 2003 WI App 84
For Robertson: Jefren Olsen, SPD, Madison Appellate
Issue/Holding: Where principal issue concerned the complainant’s credibility, indication first revealed after conviction that she had been treated for depression with psychotic features around the time of the incident required in camera inspection to determine whether her mental health records must be disclosed to the defense.
Note: This case arrives at the unmapped intersection of postconviction discovery and privileged records. State v. Delano J. O'Brien, 223 Wis.2d 303, 588 N.W.2d 8 (1999) settled that you’re entitled to postconviction discovery of evidence relevant to an issue of consequence where the evidence would create a reasonable probability of a different outcome. But that case involved physical evidence; how do you apply the test to privileged material? Revelation of privileged material has been addressed in a series of cases, principally State v. Johnny L. Green, 2002 WI 68, 34, 253 Wis. 2d 356, 646 N.W.2d 298 (defendant must set forth a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information that is necessary to a determination of guilt or innocence and that is not merely cumulative to other evidence available to the defendant) and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), where the issue arose pretrial. The only published case discussing postconviction, in camera review of privileged material didn’t reach the question of probability-of-different result. State v. Behnke, 203 Wis. 2d 43, 53-54, 553 N.W.2d 265 (Ct. App. 1996). The defense showing necessary for in camera inspection is a preliminary one, and therefore should be less stringent than the test for disclosure:
¶22. We therefore conclude that the O'Brien "consequential evidence" test should not be used to decide whether to conduct an in camera review. A defendant requesting confidential records during postconviction discovery should be required to meet the preliminary Shiffra-Green burden. As with pretrial requests for confidential records, applying the Shiffra-Green test to the posttrial setting strikes the appropriate balance between the interests of the defendant and the State. It affords the defendant an opportunity to have a judge, an independent overseer, review the records while still protecting the privacy of the alleged victim. Then, if the defendant has shown an entitlement to an in camera review based upon the first four factors of the newly discovered evidence test, the trial court should apply the O'Brien "consequential evidence" test to determine whether the material it reviews during its in camera inspection should be disclosed to the defendant. We have every confidence in the trial courts to make a proper determination as to whether the disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611.

¶23. The State argues that this conclusion is inconsistent with our decision in Behnke. This is simply not the case. Like Behnke, here we have adopted the materiality test from Shiffra, as it has been clarified in Green, and applied it to the third newly discovered evidence factor. Behnke, 203 Wis. 2d at 54. Additionally, as we have indicated, in Behnke, the defendant was engaging in what can be characterized as a "fishing expedition" and we did not reach the question of whether the fifth newly discovered evidence factor-whether it is reasonably probable that a different result would be reached on a new trial-should have been applied. See id. From our discussion of Green and Ritchie it is clear that the fifth newly discovered evidence factor, which is similar to the O'Brien "consequential evidence" test, normally does not come into play until the trial court is actually conducting the in camera inspection in its chambers.5 As we discussed, in Ritchie, the Court concluded that when deciding whether to release the records to the defendant, the trial court should determine whether the evidence was material, meaning the court should ask whether the result of the proceeding would have been different had the evidence been disclosed to the defendant, a test that mirrors the O'Brien test. Thus, contrary to the State's assertions, our approach not only is consistent with our decision in Behnke, but also will bring Wisconsin into alignment with the teachings of the Supreme Court in Ritchie.


5 An exception would be if the trial court assumed the truth of every supposition the defendant hoped to gain by perusal of the confidential records, but nonetheless concluded that such evidence would not create a reasonable probability of a different result on retrial.
Applying the test to the particular facts: because trial centered on credibility (the complainant conceded that she had consensual sexual contact with the defendant; the disputed question is whether he failed to stop when she wanted), and because a psychiatrist indicated after trial that she might have been psychotic, “Robertson has presented evidence demonstrating that E.B.'s psychiatric difficulties might affect both her ability to accurately perceive events and her ability to relate the truth. These problems are relevant and necessary to a determination of guilt or innocence because they bear directly on both E.B.'s credibility and Robertson's defense of consent. Thus, Robertson is entitled to an in camera inspection of the mental health records.” ¶31.
Discovery
State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak
Issue: Whether defendant was entitled to postconviction discovery on the issue of whether the sexual assault complainant had been located at a drug house and held in custody pending her testimony.
Holding:
¶32. A defendant has a right to postconviction discovery if the desired evidence is relevant to an issue of consequence. State v. O'Brien, 223 Wis. 2d 303, 321, 588 N.W.2d 8 (1999). Further, a defendant seeking such discovery must establish that the evidence probably would have changed the outcome of the trial. Id. "The mere possibility that an item of undisclosed information might have helped the defense" is not enough. Id. We will uphold a court's denial of postconviction discovery absent an erroneous exercise of discretion. Id. at 320.

¶33. A defendant is not automatically entitled to a hearing on a postconviction motion. State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). If a defendant presents only conclusory allegations that fail to raise a question of fact, or if the record conclusively demonstrates that the defendant is not entitled to relief, the court may deny the motion on its face. Id. at 309-10. Whether a motion alleges facts warranting relief, thus entitling a defendant to a hearing, is a legal issue we review de novo. Id. at 310. If the motion fails to allege sufficient facts, the trial court has discretion to deny the postconviction motion without a hearing, id. at 310-11, and this court reviews that denial solely to determine whether the court erroneously exercised discretion, id. at 311.

¶34. Here, we see no erroneous exercise of discretion. Responding to Ziebart's motion, the State conceded its difficulty in producing Mary but represented that she was never held in state custody or coerced for her testimony. Ziebart offered nothing more than Mary's acquaintance's impression to suggest otherwise. Moreover, as Ziebart concedes in his brief to this court, "the [S]tate, like any party, may use a subpoena or material[-]witness order to coerce a witness to attend the trial and answer questions." Thus, given that the State could have lawfully held Mary in custody to gain her testimony, the details of any such custody could establish nothing more than the "mere possibility" that such information "might have helped the defense." See id.

(Well, how this witness's presence was obtained might not be important, but the court doesn't quite explain why this is so. The fact that she had been found in a crack house and held in custody before testifying (assuming that to be so) might well have given the defense a line of impeachment. A pending charge is certainly relevant to witness-credibility, whether or not a deal has been struck for testimony. State v. Barreau, 2002 WI App 198, ¶55. But that principle may not be as meaningful in this case, if the jury heard testimony anyway that the complainant was a "crack whore." The court doesn't say. The court seems to dispose of the issue on procedural as well as (tersely stated) substantive grounds: the motion was conclusory, offering "only" the assertion of the complainant's acquaintance. It's not clear why this isn't enough - an assertion made by someone with personal knowledge of the matter isn't exactly conclusory. It could be that the court expects documentation, such as jail records, where they can be produced. In this context, apparently, less is not more.)
Discovery
State v. Delano J. O'Brien, 223 Wis.2d 303, 588 N.W.2d 8 (1999), reconsideration denied, 225 Wis.2d 247, 591 N.W.2d 846 (1999), affirming 214 Wis.2d 327, 572 N.W.2d 870 (Ct. App. 1997).
For O'Brien: Martin E. Kohler, John C. Thomure, Jr.
Issue/Holding: O'Brien sought to obtain certain exhibits for postconviction testing. Though the court of appeals enunciated certain guidelines for such postconviction discovery, State v. O'Brien, 214 Wis. 2d 327, 342-43, 572 N.W.2d 870 (Ct. App. 1997), the supreme court now declines to adopt them. Acknowledging, at the same time, "that a defendant has a right to post-conviction discovery when the sought-after evidence is relevant to an issue of consequence," the court apparently leaves the test at just that level of generality.
Rather, we believe that a determination whether evidence is of consequence will limit the remedy of post-conviction discovery to only those situations where it is warranted.... Rather, we hold that a party who seeks post-conviction discovery must first show that the evidence is consequential to an issue in the case and had the evidence been discovered, the result of the proceeding would have been different.
O'Brien isn't entitled to such discovery, because testing wouldn't have shed any light on the critical question of whether or not the victim consented to the acts.
Postconviction Motions – Evidentiary Hearing – Claim of Denial of Effective Counsel Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
 ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant is entitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.”

¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better.

¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal.

The court, incidentally, exhorts the SPD to scrutinize attorney performance closely, albeit with an eye toward the limitations imposed by scarce reources, ¶5 n. 1: "We recognize that the limitation of resources makes monitoring of appointed counsel by the State Public Defender impossible. However, as appointing authority, it is also reasonable to expect a meaningful response to and inquiry regarding complaints about the appointed lawyer’s conduct that, if true, could seriously prejudice the client’s right to meaningful representation." The court also uses a punctuation mark to express apparent shock at counsel’s late entry into the case, ¶13:“(first meeting his client at the preliminary examination(!).”
Evidentiary Hearing -- IAC Claim -- Trial Court Discretion to Deny
State v. David J. Roberson, 2005 WI App 195
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶11      A circuit court acts within its discretion in denying without a Machner hearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). “If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996). 
The trial court’s stated basis for denying a Machner hearing – “the court’s own observation of witnesses” who testified at trial but who “were not questioned thoroughly” as to the matter now in dispute – was misplaced, ¶13. However, the record “conclusively demonstrates that Roberson is not entitled to relief” (failure to raise a suppression issue is deemed non-prejudicial because the evidence would have been admissible anyway) and denial of hearing is affirmed on that alternative basis, ¶14.
Evidentiary Hearing -- Pleading Requirements
State v. John Allen, 2004 WI 106, affirming unpublished decision
For Allen: Michael J. Backes
Issue/Holding:
¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. …

¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that, if true, would entitle the defendant to relief, many defendants continue to file insufficient postconviction motions.…

¶21 There is a clear theme running through these and other similar cases. As we said in Bentley, the motion must include facts that "allow the reviewing court to meaningfully assess [the defendant's] claim." Bentley, 201 Wis. 2d at 314. For example, an insufficient statement that does not allow the court to meaningfully assess a defendant's claim might be an assertion that trial counsel did not adequately prepare for trial. This assertion is the defendant's opinion only, and it does not allege a factual basis for the opinion. On the other hand, a defendant's assertion that trial counsel failed to adequately prepare for trial because counsel did not review all the police reports and one police report contained exculpatory information that counsel did not put into evidence, alleges a factual basis for the assertion. See Saunders, 196 Wis. 2d at 51-52.

¶22 In addition, facts that allow a reviewing court to meaningfully assess a defendant's claim are those facts that are material to the issue presented to the court. A "material fact" is: "[a] fact that is significant or essential to the issue or matter at hand." Black's Law Dictionary 611 (7th ed. 1999). …

¶23 As an assistance to defendants and their counsel, we propose that postconviction motions sufficient to meet the Bentley standard allege the five "w's" and one "h"; that is, who, what, where, when, why, and how. A motion that alleges, within the four corners of the document itself, the kind of material factual objectivity we describe above will necessarily include sufficient material facts for reviewing courts to meaningfully assess a defendant's claim. …

The meta-message would seem to be: postconviction motions must contain more, rather than less, detail, at least when requesting an evidentiary hearing. The court gives examples of motions that would pass muster; these were elided above but should be studied. The court goes on to find Allen’s motion insufficient to have warranted a hearing: “Though replete with information, the motion contains conclusory allegations and lacks sufficient material facts that Bentley requires,” ¶29. The motion, for example, “focused” on a document but failed to allege “sufficient material facts” to support a conclusion that it “actually exists.” Id. And so on.

UPDATE: See also State v. Lisamba L. Love, 2005 WI 116, ¶¶30, et seq. (applying Allen and concluding that sufficient facts pleaded to warrant hearing on both IAC and NDE claims), the court noting, importantly, ¶36, that the pleading need not establish that the asserted facts are admissible evidence: "a movant need not demonstrate theories of admissibility for every factual assertion he or she seeks to introduce"; accord, ¶50: "as we noted above, a movant need not demonstrate the admissibility of the facts asserted in the postconviction motion, but rather must show sufficient objective material factual assertions that, if true, would warrant the movant to relief."

Jury Waiver -- Challenge -- Applicability of State v. Bangert.
State v. Bobby G. Grant, 230 Wis.2d 90, 601 N.W.2d 8 (Ct. App. 1999).
For Grant: Patrick M. Donnelly, SPD, Madison Appellate.
Issue: Whether Grant's waiver of jury trial was invalid because the trial court failed to advise that the verdict must be unanimous.
Holding: The procedure applicable to challenging guilty pleas, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) applies to this context; therefore, in order to prosecute a challenge to jury waiver, the defendant must allege s/he didn't understand the right to unanimous verdict, failing which the challenge necessarily fails.
Go To Brief
Motion to Reconsider – Basis, Generally
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding:
¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853. A manifest error of law occurs when the circuit court disregards, misapplies, or fails to recognize controlling precedent. Id.

¶9        We review a circuit court’s denial of a motion for reconsideration to determine if the court properly exercised its discretion. Id., ¶6. A circuit court erroneously exercises its discretion if that exercise is based on an error of law, State v. Davis, 2001 WI 136, ¶28, 248 Wis. 2d 986, 637 N.W.2d 62, and we review questions of law de novo. See State v. Kramer, 2001 WI 132, ¶17, 248 Wis. 2d 1009, 637 N.W.2d 35. The issue of the correct legal standard presents a question of law. Id. Thus we review de novo whether the court’s denial of the motion for reconsideration was based on an error of law in that it did not apply controlling precedent.

Motion to Reconsider Non-Final Order, Inherent Authority
State v. Bobby R. Williams, 2005 WI App 221
For Williams: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: A court has inherent authority to reconsider a nonfinal ruling at any time prior to entry of final order of judgment, ¶11, citing Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶57, 265 Wis. 2d 703, 666 N.W.2d 38.
Not raised by this appeal, but worth remembering: to support a notice of appeal, a denied motion for reconsideration must raise a “new” issue (i.e., one not incorporated in the original order whose reconsideration was sought), e.g., State v. Larry G. Edwards, 2003 WI 68; and, on the other hand, the failure to file a notice of appeal to a denied reconsideration that does raise a new issue prevents review of that new issue, State v. Matthew J. Trecroci, 2001 WI App 126, ¶22.
Motion for Reconsideration -- While (SVP) Appeal Pending
State v. Shawn D. Schulpius, 2004 WI App 39, PFR granted 4/20/04
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Pendency of appeal doesn't prevent trial court from hearing motion to reconsider, ¶33, n. 8:
Second, Schulpius argues that the trial court did not have jurisdiction to grant on November 29, 2000, the State's motion for reconsideration because the case was then on appeal. We disagree. Wisconsin Stat. § 808.075(1) specifically permits the trial court to entertain motions for reconsideration pending appeal and there is nothing in either § 808.075 or in Wis. Stat. ch. 980 itself to the contrary. As the supreme court recently reiterated:
Motions for reconsideration pending appeal serve an important function. A circuit court's reconsideration may obviate the need for an appeal. Allowing such motions could, therefore, not only spare the parties unnecessary expense, but could also serve the goal of judicial economy. Even if an appeal is not avoided, a motion for reconsideration enables a circuit court to hone its analysis and thus expedite the appellate review process.
Highland Manor Assocs. v. Bast, 2003 WI 152, ¶17, No. 02-2799 (footnote omitted).
(Nor was the motion untimely, though made 3+ years after-the-fact: it “was based on contemporaneously acquired evidence … and was thus not a new spin on old facts.” The court declines to “put a time-limit on the State's ability to bring new information to the trial court that bears on the risk that a sexually violent person ordered to be placed on supervised release may pose to the community.” Id.)
(But note: The result – that the prosecution properly moved the court under § 806.07 to reconsider its earlier ruling in favor of release seemingly conflicts with State v. William L. Morford, 2004 WI 5 ("¶5 We hold that Wis. Stat. § 980.08(6m), rather than § 806.07(1)(h), governs granting relief to the State from a chapter 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. … ¶55 Allowing a circuit court to initiate proceedings on its own motion, as it in effect did here, or allowing a district attorney to initiate proceedings, as happened here, is contrary to the intent of the legislature, subjugates the authority of the department to the will of a circuit court or district attorney and vitiates an important safeguard the legislature provided for sex offenders.”), released after Schulpius.)
Motion to Reconsider Trial Court Ruling -- Inherent Authority of Court to Entertain
State v. William L. Brockett, 2002 WI App 115, PFR filed 5/17/02
For Brockett: Hans P. Koesser
Issue/Hearing: The trial court has inherent authority to vacate or modify an order (including, as in this instance, on state's motion). ¶¶13-15.
Name Change, Judgment of Conviction – Based on Claim of Common Law Right to Change Name
State v. Jermaine Smith, 2009 WI App 104
Pro se
Issue/Holding:
¶1        Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case, we affirm the order.

¶11      Like Tiggs, Smith is asserting that his name was legally changed prior to the time he committed the crime for which he is imprisoned. Unlike Tiggs, Smith asserts that his name was changed not by virtue of a court order, but by application of common law. Smith is correct that Wisconsin law allows one to change one’s name via the common law. See State v. Hansford, 219 Wis. 2d 226, 246, 580 N.W.2d 171 (1998) (Wisconsin “recognize[s] the common law right to change one’s name through consistent and continuous use, as long as the change is not effected for a fraudulent purpose.”). However, we conclude that Smith’s motion—which was based on his assertion that he changed his name via the common law—failed to provide any evidence that he changed his name through consistent and continuous use. Moreover, he failed to raise this issue during the pendency of his criminal case, even though he was supposedly already using the name Marcolo Von Capoeira during that time. For these reasons, the motion was properly denied.

Name Change, Judgment of Conviction
State v. John D. Tiggs, Jr., 2002 WI App 181
Issue/Holding:
¶9. We agree with Tiggs that once he has changed his legal name, he has a positive right to be called by that name. But he may also, by conduct, forfeit that right. If he calls himself by some other name, he has announced to the world that he goes by that other name and others then have the right not only to call him by that other name, but to create and file documents under that name. Tiggs had the initial control after the name change to dictate what name he was going to be called, but he relinquished that control. He cannot now assert control on a haphazard basis whenever he wants to and assume that every entity must accede to his wishes. As the trial court properly noted, to rule for Tiggs would be to allow him an avenue to manipulate the criminal justice system at his will. That cannot be allowed or condoned.
Motion to Reconsider Trial Ruling -- Necessity to Raise "New Issue"
State v. Larry G. Edwards, 2003 WI 68, reversing unpublished summary order of court of appeals
For Edwards: Martha K. Askins, SPD, Madison Appellate
Issue: Whether, after the trial court dismissed a criminal case due to violation of intrastate detainer act time limits, the state’s motion for reconsideration was supported by a “new issue,” namely whether the dismissal was with prejudice.
Holding: “We conclude that the State raised a 'new issue' in its motion for reconsideration because the circuit court did not clearly dispose of whether the dismissal was with prejudice in its original judgment.” ¶1.
(Measured against the original dismissal order the state’s appeal would have been untimely. A motion for reconsideration may not present the “same issues” as those already disposed of – otherwise, it would simply become a mechanism for extending the notice of appeal deadline – but must instead only raise “new issues.” That makes this case awfully fact-specific and non-recurrent: when this trial judge granted the motion to dismiss, he said “Consequences are, he walks”; did this mean, dismissal with prejudice? The supreme court says that the meaning was ambiguous: “‘He walks’ could mean forever; it could also mean until he is recharged.” ¶11. If there is a general rule to be gotten at, it might be the court’s seeming approval of the principle that the “new issues” test is liberally applied. ¶12.)
Motion to Reconsider Trial Ruling -- Necessity of Separate Appeal
State v. Matthew J. Trecroci, Ryan J. Frayer, Ronnie J. Frayer, Scott E. Oberst, Amy L. Wicks, 2001 WI App 126, PFR filed 5/31/01
For defendants: Robert R. Henak
Issue: Whether a motion to reconsider injected sufficiently new issues into the case so as to require a separate notice of appeal to make the order denying that motion reviewable.
Holding:
¶22 In summary, when the basis for a reconsideration motion is a recent decision, the test for appellate jurisdiction is still the Ver Hagen rule [Ver Hagen v. Gibbons, 55 Wis. 2d 21, 197 N.W.2d 752 (1972)]. Here, the State's motion for reconsideration injected an entirely new issue into the case-a claim that the combination of probable cause and exigent circumstances served to justify the police conduct under Hughes. If the State wanted to complain about the trial court's rejection of that claim on reconsideration, it was duty bound to appeal that ruling. It has not. Therefore, the Hughes issue is not properly before us. We accordingly limit our review to the matters covered by the trial court's original order suppressing evidence.
Reconstruction of Missing Evidence
State v. Jerry L. Parker,  2002 WI App 159, PFR filed 5/20/02
For Parker: William Christopher Rose
Issue: Whether the principle of State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987) (missing transcript that can't be re-created requires new trial) applies to posttrial destruction of potentially exculpatory evidence (taped drug transaction) given to the defense before trial but never introduced into the record.
Holding:
¶11. Parker's reliance on Perry is misplaced. Perry's concern is the protection of a defendant's right to a meaningful appeal by assuring a defendant's access to a full and complete transcript of the trial. Id. Here, however, we address the destruction of an audiotape that was provided to the defendant prior to but never utilized at trial. The import of such a tape and the import of a trial transcript cannot be equated.
¶12. Providing a defendant a full transcript guarantees that the defendant has the opportunity to analyze the proceedings of the trial court and to challenge any errors. State v. Raflik, 2001 WI 129, ¶31, 248 Wis. 2d 593, 636 N.W.2d 690. But again, the tape here was never made a part of the trial court record by Parker or the State. In deciding whether an error warrants a new trial, we are limited to the record of the proceedings in the trial court and the appellate record cannot be enlarged by materials which were not made part of the record in the trial court. Verex Assurance, Inc. v. AABREC, Inc., 148 Wis. 2d 730, 734 n.1, 436 N.W.2d 876 (Ct. App. 1989).  Perry has never been extended to cover the destruction of or absence of items not a part of the trial court proceedings.
Reconstruction of Missing Transcript -- Counsel-Waiver Proceeding
State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky
Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference), then the question becomes whether the record was properly reconstructed, pursuant to guidelines in State v. Raflik, 2001 WI 129, 248 Wis. 2d 593, 636 N.W.2d 690, and State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985), ¶6. The reconstruction was insufficient:
¶14          We begin with the length of time between the hearing that should have been recorded and the reconstruction—fifteen months. Raflik specifically noted that the eighteen hours that had passed before reconstruction was “in sharp contrast” with the four-month delay in the Washington case. Fifteen months is obviously much longer than four months, and is certainly long enough for recollections to become inaccurate.  Because the reconstruction here was primarily based on the recollections of the judge and the assistant district attorney, we conclude this passage of time weighs against reconstruction.

¶15      Another factor is the length of the reconstructed segment. … We agree with the judge that the waiver portion of the hearing might take a short period of time, but it also might take longer. Therefore, this factor is neutral at best. 

¶16      Next is whether there were any contemporaneous documents used to reconstruct the record.  Here there are none. … Therefore, this factor weighs against reconstruction.

¶17      The availability of witnesses used to reconstruct the record is another factor. Here, all the necessary witnesses were available and testified. Therefore, this factor does not weigh against reconstruction. 

¶18      The final factor is the complexity of the segment reconstructed. As we have noted, there must have been a specific and significant colloquy with DeFilippo to establish he adequately waived his right to counsel. See Klessig, 211 Wis. 2d at 206-07. This involves a discussion of several factors. Thus, we conclude the reconstructed segment is fairly complex, dealing with an important constitutional right and therefore weighs against reconstruction.

¶20      After reviewing the factors, we conclude the court erred in reconstructing the record. As we have noted, the court must be satisfied beyond a reasonable doubt that the reconstructed record adequately reflects what actually occurred. Id., ¶54. Here we are particularly concerned with the amount of time that passed before reconstruction; the fact that the reconstruction was done simply based on the recollection of the parties, with no corroborating notes or documents; and the fact that the reconstructed hearing dealt with a basic and fundamental constitutional right. We therefore conclude there is reasonable doubt that the reconstruction is adequate to show that all the required factors necessary for waiver were explored. Consequently, the record does not show that DeFilippo knowingly and voluntarily waived his right to counsel. We thus reverse the judgment against him and remand for a new trial.

DeFilippo’s challenge was on direct appeal following pro se conviction. Hard to say how much impact this will have: how many defendants represent themselves in the first place; and, in the second, how many waive counsel in an unrecorded appearance? That said, there is the potentially for impact in any given sentencing enhancement, if for no other reason than that invalid waiver of counsel is the only basis for collaterally challenging a prior conviction-enhancer, see, State v. David M. Hahn, 2000 WI 118, clarified on reconsideration, 2001 WI 6, and State v. Charles J. Burroughs, 2002 WI App 18.
Reconstruction of Missing Transcript -- Application for Search Warrant
State v. Cherise A. Raflick, 2001 WI 129
For Raflik: Michael J. Fitzgerald, Dean A. Strang
Issue/Holding:
¶1. This case requires us to decide whether suppression is the proper remedy when a telephonic application for a search warrant is not recorded in accordance with Wis. Stat. § 968.12(3)(d)1, and when the factual basis for the warrant is reconstructed in an ex parte hearing after the warrant has been executed. We conclude that suppression is improper, and that the warrant application in this case was appropriately and adequately reconstructed.
Analysis: As the court notes, three constitutional protections are implicated by this issue: fourth amendment (unreasonable search & seizure); 14th amendment due process (meaningful judicial review); and Art. I, § 21 (meaningful appeal). Given conceded procedural regularities (probable cause, etc.) other than lack of contemporaneous record, no direct fourth amendment violation occurred. ¶17. As to the irregularity that did occur, the court holds that at least where, as here, the failure to record a warrant application isn't the result of police misconduct, the fourth amendment is satisfied "when a careful reconstruction of a warrant application is made." ¶21. Various factors should be considered, such as length of unrecorded segment, time between application and reconstruction, and extent of issuing judge's role in reconstruction. ¶26. As to the rights to meaningful appeal/review, prior case law allowing reconstruction of missing trial transcripts is relevant. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987); State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985):
¶39. We hold that the reconstruction procedures articulated in Perry and DeLeon may be used in a situation where a telephonic warrant application has mistakenly not been recorded. Where there is no evidence of intentional or reckless misconduct on the part of law enforcement officers, a reconstructed warrant application may serve as a functional equivalent of the record of the original application. Such a reconstruction, when made appropriately, can protect the defendant's right to a meaningful appeal, as well as the defendant's ability to challenge the admission of evidence in a suppression hearing.
Reconstruction of a missing warrant application will virtually always be required. ¶40. Application of the Perry-DeLeon factors satisfies the court that the reconstruction was the functional equivalent of the original application. ¶¶42-43 (court stressing that only 18 hours lapsed between application and reconstruction). That the issuing judge conducted the hearing, and asked leading questions, wasn't inappropriate. ¶¶44-48. Nor need the hearing have been adversarial, given that it occurred prior to issuance of a charge; however, a post-charge reconstruction hearing might well require presence of counsel. ¶¶49-51. Finally, the burden of proof is to the same degree of certainty as the reconstructed proceeding; because suppression is judged by preponderance of evidence, that is thestandard that applies to warrant-application reconstruction. ¶¶53-57.
Probation Modification -- Necessity of Postconviction Motion
State v. Bernard G. Fearing, 2000 WI App 229, 239 Wis.2d 105, 619 N.W.2d 115
For Fearing: Patrick J. Stangl
Issue: Whether a defendant must first raise a challenge to a condition of probation in a trial-level postconviction motion before seeking relief in the appellate court.
Holding: Even if the rule that review of a sentence requires a trial-level motion applies to review of a condition of probation, "there are compelling reasons to review Fearing's challenge," notwithstanding absence of such motion, namely significant issues on undisputed facts respecting trial court authority to define certain probationary conditions. ¶7. (Court suggests, but doesn't distinctly hold, that rule requiring trial-level challenge to sentence does not apply to review of probation. ¶8.)
Relief from (Civil) Judgment, § 806.07
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erroneously exercised discretion in granting the state's motion to vacate an SVP order for supervised release entered, but not implemented, almost four years earlier.
Holding: Under § 806.07(1)(h), there is no deadline for relieving a party from a judgment or order, so long as "extraordinary circumstances" are shown. ¶17. Such circumstances are shown here, and the circuit court therefore didn't erroneously exercise discretion, where that court stressed the safety of childrenand the likelihood that Sprosty would reoffend. ¶¶18-25.
Go To Brief
Relief from judgment
State v. Joseph Schultz, 224 Wis.2d 499, 591 N.W.2d 904 (Ct. App. 1999)
For Schultz: Robert R. Raehsler
Issue/Holding: A party in a civil case may seek relief from judgment under Wis. Stats., § 806.07. Where the basis for the motion is "mistake," the primary question is whether the party's conduct "was excusable under the circumstances." Schultz should have been allowed to reopen a judgment so that he could litigate a crucial issue that he justifiably, but in the final analysis wrongly, thought irrelevant to the claim. (§ 806.07 procedure will be relevant to any SPD case governed by civil rules, such as 980's.)
Sealed File
State v. John Doe, 2005 WI App 68
For John Doe: Jane Doe (the court file has been ordered sealed, and the caption amended “to shield the defendant’s identity”; it’s not clear whether the court will publish counsel’s name, so unless and until that occurs, it’s best to assume that revealing counsel’s identity would be inimical to the spirit if not letter of the secrecy order)
Issue/Holding:
¶11. We next address the defendant's allegation that the trial court erroneously exercised its discretion when it denied his request to file his sentence modification motion under seal. "Documents are presented under seal precisely so that their secrecy might be preserved and disclosure to the public might be prevented." State v. Gilmore, 201 Wis. 2d 820, 833, 549 N.W.2d 401 (1996). …

¶12. The defendant explained that he sought such an order so that he could quote from the sealed sentencing transcript. The trial court denied this request without giving its reason or holding a hearing. Without any explanation from the trial court as to its reasons for the denial, the defendant was prohibited from quoting from the sentencing transcript. Having no explanation of the court's decision, and noting that the defendant appears to have been severely restrained in presenting his request for sentence modification, we conclude that the trial court erroneously exercised its discretion in denying the request. On remand, we order the trial court to allow the defendant to supplement his motion under seal. For the reasons stated, we reverse the trial court and remand with directions.

Sentence Modification -- Necessity of Postconviction Motion, Even Following Resentencing
State v. Roger S. Walker, 2006 WI 82, affirming as modified summary order
For Walker: James Rebholz
Issue/Holding: In order to obtain review, a defendant must file a postconviction motion to modify sentence, even if the event was a re-sentencing which came to the same result as originally imposed.
¶37      In the hope of clarifying appellate procedure, we conclude that when a defendant seeks modification of the sentence imposed at resentencing, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. [12] The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing.

¶38      Because, however, Wis. Stat. (Rule) § 809.30(2) and Wis. Stat. § 973.19 are silent in how they relate to a motion to modify a sentence imposed at resentencing, we conclude that there is good cause to grant Walker an extension of time to file a notice of intent to pursue postconviction relief.


 [12]  Wisconsin Stat. (Rule) § 809.30(2)(h) recognizes two situations in which a defendant need not go back to the circuit court: when the grounds for seeking relief are "sufficiency of the evidence or issues previously raised." These exceptions would not normally apply to modification of a sentence.
The appellate court may excuse failure to file a motion where a “compelling circumstance” exists and though the court finds none here it is “not unsympathetic to the confusion that this unusual set of facts must have created for counsel,” ¶35, hence the deadline extension for filing a postconviction motion on remand.
Sentence Modification -- Notice to State
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state's response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) -- if the motion is obviously non-meritorious, the trial court should deny it outright; otherwise, the court should ensure service of the motion on, and response by, the DA and grant a prompt hearing. ¶¶18-19
Sentence After Revocation -- Modification -- Timeliness of Motion
State v. Joseph Scaccio III, 2000 WI App 265, 240 Wis.2d 95
For Scaccio: Jim D. Scott
Issue: Whether Scaccio's motion to modify a sentencing imposed after revocation was untimely because he failed to appeal the original judgment of conviction.
Holding/Analysis: The principle is readily stated -- you can take a direct appeal of a sentence imposed after revocation -- but a certain amount of elaboration is unfortunately required. Scaccio was originally placed on probation (hence, entry of judgment of conviction #1). He was later revoked and sentenced (leading to JOC #2). He moved to modify the sentence imposed after revocation, on the basis of both new factors and erroneous exercise of discretion, only to run into a fairly bizarre waiver-type claim: "The backbone of the State's position is that the time to initiate a direct appeal under Rule 809.30 runs from the original judgment of conviction only." ¶6. The state's argument is, to be polite, strained, for the simple reason that you've got the right to appeal any final order, which JOC #2 undeniably is. It's certainly true that you're limited to challenging the new event embodied by JOC #2, the sentencing after revocation, but that's all Scaccio's attempting to do. And that is, indeed, just how the court of appeals (properly) resolves the issue:
¶10 The rule we derive from Drake and Tobey is that a defendant cannot use WIS. STAT. RULE 809.30 in conjunction with WIS. STAT. § 973.19(1)(b) to raise issues that go back to the original judgment of conviction. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. See Drake, 184 Wis. 2d at 399-400. However, the decisions in Drake and Tobey do not preclude a defendant from taking a direct appeal from a subsequent judgment of conviction. A defendant facing a new judgment after revocation of probation must have an opportunity to fully litigate issues initially raised by the events of the resentencing hearing and the judgment entered after that hearing.
So far, so good. But keep in mind that the main question is whether Scaccio has a new factor that would justify modification of sentence. And, although you'd never know it from reading this opinion, a trial court has inherent authority to modify sentence on the basis of new factors, at any time. See generally State v. Krueger, 119 Wis. 2d 327, 332, 351 N.w.2d 738 (Ct. App. 1984). In other words, this whole discussion about timeliness is irrelevant in relation to new factors. Worse, the court's discussion may lead to the (wrong) conclusion that a new factor must be raised under, and within time limits of, R. 809.30. When the court finally gets around to Scaccio's proffered new factors the result is anticlimactic. Most relate to favorable progress in prison, something that can't constitute a new factor as a matter of law. ¶15. As for sentencing discretion, "a five year prison term for second-degree sexual assault of a child will rarely constitute an erroneous exercise of discretion." This case isn't the exception. ¶18.

Processing Appeals -- Petition for Review

Petition for Review -- Deadline Lost through Clerical Error -- Reinstate Via Habeas
State ex rel. Jose DeJesus Fuentes v. Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48 (1999), original action.
For Fuentes: Robert T. Ruth.
The supreme court rectifies loss of the petition for review deadline caused by the court of appeal's clerical error (failure to mail a copy of decision to appellate counsel). The remedy, which Fuentes followed, is to seek habeas relief in the supreme court. The court grants his petition, in the form of providing 30 days in which to file a PFR.
Petition for Review Deadline – Prison Mailbox Rule, Retroactivity
State ex rel Norman O. Brown v. Bradley, 2003 WI 14, on original petition for writ of habeas corpus
For Brown: Greg J. Carman
Issue/Holding:
¶1. The Petitioner, Norman O. Brown, seeks reinstatement of his petition for review which was previously dismissed as untimely filed. Brown contends that this court should apply retroactively the tolling rule for pro se prisoners that it adopted in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, and deem his petition for review "timely."

¶2. We now conclude that the tolling rule we adopted in Nichols is a civil procedural rule with limited retroactive application. It applies retroactively to cases on direct review or not yet final when Nichols was decided and to pro se prisoners who had raised the issue in habeas petitions that were still pending before this court. Because this court denied Brown's petition for review prior to deciding Nichols, he is not entitled to relief under this application of the tolling rule. However, we determine that denying relief to Brown would be unjust because this court denied Brown's petition for habeas corpus while nearly simultaneously granting Nichols' petition raising virtually the same claim. Accordingly, we reinstate Brown's petition for review pursuant to Harmann v. Hadley, 128 Wis. 2d 371, 382 N.W.2d 673 (1986).

(PFR deadlines involve a rule of civil, not criminal, procedure. ¶¶13-14. Retroactivity is the rule, not the exception. ¶16. The test for retroactivity is found in Chevron Oil v. Huson, 404 U.S. 97 (1971), adopted in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979). Applying those factors: only “limited,” not “full,” retroactivity is warranted, ¶¶18-28; on the particular facts, Brown’s case is sufficiently similar to Nichols’ that differential relief would be unjust. ¶¶29-36.)
Petition for Review Deadline -- Pro Se Prisoner "Mailbox Rule"
State of Wisconsin ex rel. Eugene Nichols v. Litscher, 2001 WI 119
For Nichols: Jeffrey O. Davis, Daniel J. LaFave
Issue: Whether a pro se prisoner's petition for review may be accepted for filing in the supreme court, even though received after the filing deadline, where it was delivered to prison authorities for mailing before the deadline.
Holding:
¶11 We decline to interpret the term 'file' in § 808.10 and § 809.62(1) to mean 'deposit in a prison mailbox.' We agree that such an interpretation may strain the plain language of both the statute and the rule. In addition, such a construction of the word 'file' seemingly conflicts with language in our prior decisions....

¶13 ... However, this does not mean that Nichols is without relief....

¶24 We are persuaded by the rationale in Houston and by the approach in Shimkus and its progeny. Accordingly, we apply a similar tolling rule to pro se prisoners who file petitions for review in this court....

¶27 While we do not mandate any particular procedure that litigants must follow, we note that both Nichols and the State agree that the factual question of the proper tolling date could be relatively easily resolved in most cases by the use of a certificate of service or affidavit of mailing. Such a certificate or affidavit may be desirable in that, as the State avers, many prisons do not have a general 'log-in' system that identifies the date on which a prisoner submits outgoing mail. A certificate or affidavit would create a rebuttable presumption that the prisoner had delivered his or her petition to the proper prison authorities on the particular day certified. We note, however, that a tolling rule will not excuse a pro se prisoner who ultimately fails to pay filing fees, address the petition properly, or otherwise comply with filing requirements....

¶32 In sum, we conclude that the 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing....

(Note: The court holds open the issue of retroactivity of this rule. ¶31.)
(Other cases discussing the mailbox rule may be found here.

Processing Appeals -- Record on Appeal

Record on Appeal -- Missing Transcript: Appellate Court Assumes that Missing Material Supports Trial Court Ruling
State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04
For Provo: William H. Gergen
Issue/Holding:
¶19 … Further, Provo has not made the transcript of the plea hearing a part of the record. Consequently, we must assume that the transcript of that hearing supports the trial court’s finding that Provo’s plea was not coerced. See State v. McAttee, 2001 WI App 262, ¶5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 (“It is the appellant’s responsibility to ensure completion of the appellate record and ‘when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court’s ruling.’” (Citation omitted)).

Processing Appeals -- Sanctions

(see also Counsel -- Sanctions)

Sanctions – Summary Reversal of Appeal
Raz v. Brown, 2003 WI 29
Issue/Holding: Because it is no different in effect from dismissal with prejudice, summary reversal is a “drastic sanction” triggering the test under State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999) and § 809.83(2), and may not be imposed “without finding egregious conduct, bad faith, or a litigant’s abandonment of the appeal.” ¶¶3, 16-18. Under the particular facts, the litigant’s failure to file a response brief did not satisfy this test.
Sanctions -- Frivolous Appeal
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether the appeal is sufficiently frivolous to warrant sanctions.
Holding:
¶19. On five previous occasions, Casteel's appeals have been dismissed based on Wis. Stat. § 974.06(4) and Escalona-Naranjo. This case is dismissed on the same basis. Because we conclude that Casteel knows or should know that this, his eighth postconviction order appeal, is without any reasonable basis in law or equity and is not supported by a good faith argument for an extension, modification or reversal of existing law, we determine that this appeal is frivolous. See Wis. Stat. Rule 809.25(3)(c)2....

¶23. The purpose of the frivolous claims and appeals statute, Wis. Stat. Rule 809.25(3) is 'to deter ... litigants ... from commencing or continuing frivolous actions and to punish those who do.' Village of Tigerton, 211 Wis. 2d at 785. However, '[w]ithout an order prohibiting future filings related to the same issues, these statues would be virtually useless against a pro se party who cannot pay.' Id. (quoting Minniecheske, 161 Wis. 2d at 748). Frivolous actions hinder a court's ability to function efficiently and effectively and to fairly administer justice to litigants who have brought nonfrivolous actions. A court may exercise its inherent power to ensure that it 'functions efficiently and effectively to provide the fair administration of justice,' City of Sun Prairie v. Davis, 226 Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999), and to control its docket with economy of time and effort. Rupert v. Home Mut. Ins. Co., 138 Wis. 2d 1, 7, 405 N.W.2d 661 (Ct. App. 1987).

(Court proceeds to bar future filings unless Casteel satisfies certain conditions. ¶25.)

Processing Appeals - Supreme Court Review

Appellate Procedure – Supreme Court Review, Scope – Certification: Authority to Reach All Issues Raised Below
Robert Zellner v. Herrick, et al., 2009 WI 80, on certification
Issue/Holding:
¶3        …  In this court's standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.” (citing Wis. Stat. § 808.05(2) (1983-84))).
The court indeed resolves the appeal on a ground not raised by the certification (timeliness of the notice of appeal).
Appellate Procedure – Supreme Court Review, Scope – Certification: Authority to Reach All Issues Raised Below
State v. Jordan A. Denk, 2008 WI 130, on certification
For Denk: Lora B. Cerone, SPD, Madison Appellate
Issue/Holding:
¶29      When we accept certification from the court of appeals, we acquire jurisdiction of the entire appeal. We thus consider all issues raised before the court of appeals. See Wis. Stat. §§ 808.05(2) and (Rule) 809.61; State v. Stoehr, 134 Wis.  2d 66, 70, 396 N.W.2d 177 (1986). This case presents two separate questions of constitutional fact, which we address in turn.
The certification raised but one issue (search & seizure); the supreme court’s grant of review thus conferred authority to reach the entirely separate issue (plea-withdrawal) raised in the court of appeals even though not formally part of (indeed, not so much as mentioned by) the certification request.

Processing Appeals -- Voluntary Dismissal

Voluntary Dismissal, § 809.18 -- Timing
State v. Joeval M. Jones
, 2002 WI 53, ordering withdrawal of opinion in State v. Jones, 2002 WI App 29, 250 Wis. 2d 77, 640 N.W.2d 151
For Jones: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Under State v. Lee, 197 Wis. 2d 959, 542 N.W.2d 143 (1996), "the court of appeals may not refuse to dismiss an appeal when an appellant notifies the court of voluntary dismissal of the appeal pursuant to Wis. Stat. § (Rule) 809.18 prior to the court of appeals' issuance of a decision on the merits of the appeal." ¶6. This principle applies when the notification is made the day before the decision is filed, even though the decision is mailed to the parties on that day. ¶7. The file stamp date on the decision is determinative:
¶8. Although this court in Lee did not specifically define when a court of appeals' decision is "issued," in St. John's Home this court equated the date stamped on the court of appeals' decision or order as the date it was "issued and filed." Id. at 43. The fact that the clerk's office as a matter of convenience and courtesy mails appellate decisions to the parties the day before they are "dated and filed" does not mean that those decisions are to be deemed to have been "issued" as of that mailing date. Consistent with past practice and common understanding, we conclude that appellate court decisions are "issued" on the date they are filed and that date is identified by the date stamped on the first page of the decision. The notice of voluntary dismissal of the appeal filed by Jones on December 10, 2001, operated to automatically dismiss his appeal with no further action needed from the court of appeals. We conclude the court of appeals' decision dated December 11, 2001, must be withdrawn even though the panel of the appellate court deciding that appeal might not have been aware on that date of Jones' notice of voluntary dismissal.
(Emphasis supplied.) Note: The court of appeals decision, no longer available on-line, held principally that a penalty enhancer applies only to actual confinement, not extended supervision; and that resentencing is the remedy for a violation of this rule.

Processing Appeals -- Waiver of Right to Appeal

Waiver (of Appellate Counsel) -- By Conduct
State ex rel. Perry Van Hout v. Endicott, 2006 WI 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak
Issue: Whether Van Hout waived his right to appellate counsel where he rejected counsel’s offer of a no-merit report and then, after having been warned of the dangers of proceeding pro se, chose neither to open an envelope containing information counsel’s motion to withdraw nor to respond to the court of appeals order granting the motion. Holding:
¶24      We do not think that we place too much emphasis on Van Hout’s directive not to file a no-merit report, his failure to open the envelope containing counsel’s motion to withdraw, and his failure to respond to the August 8 order granting [counsel]’s motion to withdraw. A defendant who has been informed of his or her options by counsel bears the burden to exercise one of those options and so inform counsel. Flores, 183 Wis. 2d at 618-19. A defendant cannot remain mute in the face of a request from counsel for direction or when his or her rights to appeal and to counsel are at stake. See id. at 619. A defendant must accept responsibility for remaining mute, particularly when that defendant has not exhibited any prior difficulty making his views known to counsel and the court.

¶34      A defendant can waive the right to counsel by conduct. State v. Coleman, 2002 WI App 100, ¶16, 253 Wis. 2d 693, 644 N.W.2d 283. The right to counsel can be forfeited if a defendant’s conduct frustrates the orderly and efficient progression of the case. Id., ¶17. Van Hout was told he would not receive new counsel and he was advised of his options (proceed pro se or by retained counsel, no-merit report, or close the file). Had Van Hout responded to counsel’s motion to withdraw, he could have compelled counsel to file a no-merit report.[6] Van Hout’s correspondence with this court and counsel reveals a defendant who did not continue his engagement with the court and counsel about postconviction relief and representation and who, by his conduct, forfeited his right to counsel.

¶35      We hold that the undisputed facts show that by his conduct, Van Hout knowingly and intelligently waived his right to counsel after receiving the required information and warnings. Thereafter, Van Hout proceeded pro se, and he permitted his appeal rights to lapse by not acting within the time limits set by this court. The petition for a writ of habeas corpus is denied.

The court distinguishes federal cases finding non-waiver on the basis that in this instance counsel moved to withdraw, “thereby giving Van Hout an opportunity to respond to the motion,” ¶30.Thus, unlike those cases, “the record in this matter reveals that Van Hout was advised of his options and the no-merit procedure.” Van Hout, in brief, “never exercised the options repeatedly given to him,” id. The court also rejects Van Hout’s argument that when the defendant refuses both to authorize a no-merit and also to allow counsel to close his or her file, counsel must nonetheless file the no-merit report. ¶¶32-33, distinguishing Speights v. Frank, 361 F3d 962 (2004), stressing that “a key fact present here but not present in Speights [is that] Van Hout specifically forbade counsel from filing a no-merit report.” Counsel’s duty with respect to this demand is noteworthy and summarized as a separate issue. It’s worth keeping in mind that the rule now in existence, R. 809.32(2)(1)(b), on its face seemingly requires that counsel must file a no-merit report whether or not “authorized” to do so; a no-merit report is mandated if the defendant “does not consent to have the attorney close the file.” The rule was not worded similarly when Van Hout’s case arose; the court does not purport to discuss the current wording, let alone construe it. Whether the court’s holding in this case somehow affects implementation of the current rule—a recurrent issue for appellate counsel, to be sure—can’t be said with any certainty.

This is at bottom a forfeiture case: Van Hout forfeited his right to counsel by his oppositional behavior; he tried to obstruct the process by refusing to read his mail and by breaking off a process that would have allowed him to air any grievances or questions or obtain the relief that he very belatedly seeks. Indeed, the court is explicit about forfeiture, ¶34. See also ¶36 (“a defendant, by actions designed to obfuscate and frustrate the judicial review process, can give up that right”). But the case is also about estoppel, a notion the court doesn’t expressly invoke but relies on all the same: Van Hout explicitly told counsel not to file a no-merit report, which set this litigation in motion; and now, much later, he says he does want one after all. It would have been preferable, perhaps, if the court had cast its analysis in those terms. It’s one thing to say counsel must abide by the client’s directive not to file a no-merit report (a controversial notion, to say the least, which will introduce much uncertainty into appellate representation), quite another to say that the client is estopped from making such an argument because it’s a complete about-face from his earlier position (not only a fairly mundane approach but also directly related to the forfeiture rationale the court ultimately settles on anyway). Note that the court gets around to this very estoppel-like rationale in its concluding ¶ (37), but only after its elaborate detour through the byways of client autonomy:

… a defendant cannot forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from the representation. We will not allow a defendant to play games in order to get something that the defendant is not entitled to have or to engage in an endless go-round with this court over the course of postconviction proceedings. That is what is going on here, and we will not play that game.
That analysis is indeed one of estoppel, in all but name. The court probably could have skipped ¶¶23 through 33 and delivered a perfectly coherent decision with a more manageable holding.

Lastly: the supreme court, in State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994), decisively rejected the idea of judicial involvement in taking waiver of post-conviction counsel. That result hasn’t gone down easily in some quarters of the court of appeals. The result in this case, whatever else might be said about it, represents a preference for judicial involvement. That doesn’t mean that you should move to withdraw as a routine matter, but this case seems to throw out a welcome mat for you if the occasion does arise that you do want judicial approval to withdraw.

Waiver of Appeal -- Arguably Meritorious Appellate Issue that Would Have Incurred Risk
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.
Waiver of Appeal -- “Partial” No-Merit Report
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: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:
¶12 We conclude, after reviewing the Supreme Court’s analyses in Robbins, that Ford’s constitutional right to effective representation for the purpose of exercising his right to directly appeal his 1998 conviction did not require his postconviction counsel to offer him the option of a “partial no-merit” report on any potential issues remaining after Ford declined for strategic reasons to pursue an issue having arguable merit. The Supreme Court explained in Robbins that the U.S. Constitution requires only that “an indigent’s appeal will be resolved in a way that is related to the merit of that appeal,” Robbins, 528 U.S. at 276-77, and, further, that an indigent’s constitutional right is “to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments,” id. at 278 n.10. We are satisfied that the postconviction representation provided to Ford in this case met these standards.

¶13 Finally, we note that competing professional considerations weighed against the filing of a no-merit report on the present facts. As the Supreme Court recognized in Robbins, an attorney may well have legitimate ethical qualms about filing a no-merit report under Wis. Stat. Rule809.32, even when such a report is clearly required by the rule. We conclude that it cannot therefore be a violation of “professional norms” to not file a no-merit report when one is not clearly required by the rule or by the Constitution.

Strong words—plus an intriguing footnote ¶11, n. 5) which encourages the SPD to seek a change to R. 809.32 “to reduce the apparent ‘ethical tensions’ created by the present procedure.” If, that is, the SPD, thinks such a need exists; the court hints at agreement but doesn’t reveal its hand. The background is, in brief, that Ford had been informed of a potential challenge to his guilty plea, but he declined to attempt plea withdrawal because of the risks. Counsel, then, couldn’t very well have filed a no-merit report, given that there was at least some merit to a postconviction challenge. The question thus became whether the client could split his claims, and demand that counsel file a no-merit report to the sentence but simply sweep the guilty plea under the rug. The answer is no.
Supreme Court Remand to Court of Appeals for Consideration of Issues not Raised in Supreme Court
State ex rel. Leslie Schatz v. McCaughtry, 2003 WI 80, reversing 2002 WI App 167, 256 Wis. 2d 770, 650 N.W.2d 67
For Schatz: T. Christopher Kelly
Issue/Holding: Where the court of appeals granted relief on one issue without reaching others raised by the appellant and the supreme court reverses that grant of relief, the case is remanded to the court of appeals for determination of the remaining issues (which were not briefed or otherwise argued in the supreme court). ¶46.
Probable Cause, Complaint
State v. Joseph M. Espinoza, 2002 WI App 51, PFR filed 2/21/02
For Espinoza: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶9. Whether a criminal complaint sets forth sufficient probable cause to justify a criminal charge is a legal determination which we review de novo. State v. Adams, 152 Wis. 2d 68, 74, 447 N.W.2d 90 (Ct. App. 1989). Wisconsin Stat. § 968.01 requires a criminal complaint to meet probable cause requirements to confer personal jurisdiction on the circuit court. State v. White, 97 Wis. 2d 193, 197, 295 N.W.2d 346 (1980). A criminal complaint is a self-contained charge that must set forth facts within its four corners that are sufficient, in themselves or together with reasonable inferences to which they give rise, to allow a reasonable person to conclude that a crime was probably committed and the defendant is probably culpable. State v. Haugen, 52 Wis. 2d 791, 793, 191 N.W.2d 12 (1971). To be sufficient, a complaint must only be minimally adequate. This is to be evaluated in a commonsense, rather than a hypertechnical, manner in setting forth the essential facts establishing probable cause. State v. Gaudesi, 112 Wis. 2d 213, 219, 332 N.W.2d 302 (1983). A complaint is sufficient under this standard if it answers the following five questions: (1) Who is charged?; (2) What is the person charged with?; (3) When and where did the alleged offense take place?; (4) Why is this particular person being charged?; and (5) Who says so or how reliable is the informant? White, 97 Wis. 2d at 203.

WAIVER OF ISSUE / PRESERVATION OF ARGUMENT
Waiver of Issue, Generally – Authority to Review Despite Lack of Contemporaneous Objection
State v. Michael Lee Washington, 2009 WI App 148
For Washington: Christopher Lee Wiesmueller
Issue/Holding: ¶1 n. 1:
The State asserts that Washington is precluded from making this argument on appeal because he did not object when the prosecutor made his recommendation before the circuit court. Generally, the failure to object is a “dispositive infirmity.” State v. Grindemann, 2002 WI App 106, ¶27, 255 Wis. 2d 632, 648 N.W.2d 507. We nevertheless choose to address the argument because it is likely to recur. See State ex rel. Krieger v. Borgen, 2004 WI App 163, ¶7, 276 Wis. 2d 96, 687 N.W.2d 79 (in the interest of judicial economy, we may address issues that are likely to recur).
Waiver, Generally: Court’s Authority to Ignore
State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶6        Waiver. Before addressing the merits, the State argues that Tarrant’s no contest plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437. The guilty plea waiver rule is a rule of judicial administration and not of power. State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983). Therefore, in our discretion we can decline to apply the rule “particularly if the issues are of state-wide importance or resolution will serve the interests of justice and there are no factual issues that need to be resolved.” State v. Grayson, 165 Wis. 2d 557, 561, 478 N.W.2d 390 (Ct. App. 1991), aff’d, 172 Wis. 2d 156, 493 N.W.2d 23 (1992). Whether the State can modify or amend a previously issued detainer to block the application of the IAD has not been addressed in this state and must be resolved. In addition, the issue was rigorously litigated in the circuit court and our resolution will not sandbag the court. Finally, the parties have fully briefed the issue and, as we noted, the historical facts are not in dispute. We therefore turn to the merits of the issue.
Waiver – As Rule of Judicial Administration
State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers
Issue/Holding:
¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long's sole recourse would be to file a motion for post-conviction relief, perhaps alleging ineffective assistance of counsel.

¶44 Nonetheless, waiver is merely a rule of judicial administration. State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. Waiver does not limit this court's authority to address unpreserved issues, particularly when doing so can clarify an issue of statewide importance. Clean Wis., Inc. v. Pub. Serv. Comm'n, 2005 WI 93, ¶¶270-71, 282 Wis. 2d 250, 700 N.W.2d 768. The proper interpretation of the persistent repeater statute is an issue of great importance in Wisconsin law. In this case, the circuit court, the State, and the defense attorneys misinterpreted the persistent repeater statute, and the court mistakenly sentenced Long to life imprisonment without the possibility of parole. Under these circumstances, we decline to conclude that this argument is waived.

Waiver of Issue, Generally: Court’s Authority to Ignore
State v. James W. Smith, 2009 WI App 16, PFR filed 3/18/09
For Smith: Erica L. Bauer
Issue/Holding: ¶5 n. 2:
The State argues we should consider Smith’s arguments waived, because a valid guilty plea waives all nonjurisdictional defects and defenses. See State v. Kelty, 2006 WI 101, ¶18, 294 Wis.  2d 62, 716 N.W.2d 886. Smith does not refute this argument. However, waiver is a rule of judicial administration, and we may ignore waiver rules if a case presents an important, recurring issue. State v. Leitner, 2001 WI App 172, ¶42, 247 Wis.  2d 195, 633 N.W.2d 207.
Waiver, Generally - State’s Concession of Argument, Court not Bound by
State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue/Holding: The court isn’t bound by the State’s concession of defendant’s argument, ¶8 (citing State v. Gomaz, 141 Wis.  2d 302, 307, 414 N.W.2d 626, 629 (1987)).
Waiver, Generally: Court's Inherent Authority to Overlook
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding: Waiver is a rule of judicial administration and may be disregarded as a matter of the reviewing court’s inherent authority, ¶31 n. 12.
No Waiver Bar, Collateral Attack Based on Newly Discovered Evidence
State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence, a recent revision in symptomatology of shaken baby syndrome isn’t procedurally barred notwithstanding a previous such effort:
¶11      The problem with the State’s argument is that the evidence offered in Edmunds’s current postconviction motion is entirely different in character from the evidence offered in her 1997 postconviction motion. …

¶12      In her 1997 motion, Edmunds argued that the medical testimony she offered was newly discovered because defense counsel had not located the experts, who were from out of state, to provide a minority opinion that challenged the majority opinion expressed by the State’s witnesses at trial. The defense experts in the 1997 motion would have offered the existing theories in the medical community, disavowed by the mainstream, that shaking alone could not cause fatal injuries, that a previous brain injury can spontaneously re-bleed, and that an infant can experience a head trauma and have a significant lucid interval. In contrast, the defense experts who testified for the 2006 postconviction motion explained that in the past ten years, a shift has occurred in the medical community around shaken baby syndrome, so that now the fringe views posited in 1997 are recognized as legitimate and part of a significant debate. They explained that there has been significant development in research and literature that challenges the medical opinions presented at Edmunds’s trial. Thus, the State’s argument that this motion is the same as Edmunds’s 1997 motion, or that Edmunds could have raised her current arguments in her appeal from the circuit court’s 1997 decision, are unavailing. We turn, then, to the merits of Edmunds’s appeal.

Waiver – Taser Device Worn by Defendant, Failure to Raise Objection
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

¶16      However, waiver is the intentional relinquishment of a known right. State v. Matson, 2003 WI App 253, ¶41, 268 Wis. 2d 725, 674 N.W.2d 51. We indulge in every reasonable presumption against waiver of a constitutional right. See State v. Baker , 169 Wis. 2d 49, 76, 485 N.W.2d 237 (1992).  In this case, at virtually the last minute before entering the courtroom, Strand informed Champlain he had to wear the Band-It. This event occurred outside the courtroom setting and thus was not captured or preserved on the record. Nor was it memorialized by any other method. Generally, waiver will not be presumed from a silent record. See id. We are not prepared to hold that by opting to wear his own clothing instead of something from jail storage, Champlain should be held to have appreciated and weighed the legal implications of declining Strand’s offer. In short, the record does not show that Champlain intentionally relinquished a known right. [8] Matson, 268 Wis.  2d 725, ¶41.

Waiver of Argument – Failure to Cite Pertinent Authority in Trial Court Doesn’t Alone Amount to Failure to Preserve Issue
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶13  … The State’s citation for the first time on appeal to Davis and Ross is not a new argument but citation to additional authority. Citation to additional authority and legal analysis on appeal does not constitute “new argument” or advancement of a new theory on appeal. See City of Oshkosh v. Winkler, 206 Wis. 2d 538, 547, 557 N.W.2d 464 (Ct. App. 1996) (Where we refused to apply waiver when a party gave only a scant argument to the trial court on a particular theory, but provided case authority and detailed analysis for this theory on appeal). The trial court was not blindsided by the State on appeal as Markwardt suggests. Even the short argument given by the State gave the trial court some idea of the State’s position. See id. at 548. If the court did not feel comfortable making a ruling because of the limited depth of the State’s analysis, it could have simply requested further briefing. See id.
Waiver of Argument
State v. Thomas C. Burton, 2007 WI App 237
For Burton: Timothy A. Provis
Issue/Holding:
¶11   As to the lack of contemporaneous objection, we note that Burton argued strenuously before Warmington testified that his proposed testimony would be irrelevant and prejudicial, and asked that he be subjected to a voir dire outside the jury’s presence. The circuit court denied Burton the requested voir dire [1] and further ruled that Warmington could offer testimony going to the truthfulness of the witnesses and to Burton’s intent. Burton was not obliged to restate his objections in the jury’s presence and thereby emphasize the testimony he believed prejudicial. See State v. Bergeron, 162 Wis. 2d 521, 527-29, 470 N.W.2d 322 (1991). [2]

¶12   As to Burton’s failure to raise a due process claim below, though Burton now states his claim in Constitutional language, his argument here is essentially the same as the one he made in the trial court: that Warmington’s testimony was highly and unfairly prejudicial and that its probative value was very limited. Though Burton identifies the Constitution as the grounds of his appeal, the line of cases on which he relies deals with evidentiary principles. [3] The State has addressed the same cases and arguments. As the State acknowledges, the rule of waiver is one of administration, not authority. See State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. We see no just reason to avoid addressing Burton’s claims.


 [2] The State also argues that Burton “adduced some of the evidence now complained about on appeal.” All of the testimony herein discussed was elicited by the State’s direct questioning, with the exception of Warmington’s testimony that an “excited utterance” is “usually … a very truthful statement.” Though Warmington made this statement during cross-examination, it was not directly responsive to the question asked: “Excited utterance means basically just saying something in the heat of the moment, right?” This question does not constitute a waiver on Burton’s part.
Appeal -- Right to, Forfeited by Flight
State v. LaMontae D.M., 223 Wis.2d 503, 589 N.W.2d 415 (Ct. App. 1998).
For LaMontae: Terry Rose.
Issue/Holding: A juvenile's absconding from a residential treatment center forfeits his/her right to appeal the delinquency adjudication that placed him in the center. In other words, State v. Braun, 185 Wis. 2d 152, 516 N.W.2d 740 (1994), which applies an appeal-forfeiture rule to an adult absconder, extends fully to juvenile absconders.
A footnoted discussion concerning appellate counsel's duty of pre-appeal discussion with the client should be of some interest. LaMontae absconded before appellate counsel could talk to him. The court notes that an attorney "may not act on the client's behalf without the client's consent and authorization," which suggests that appellate counsel shouldn't have filed the notice of appeal in this case. However, he did consult with trial counsel, who informed him that LaMontae wanted to appeal an underlying motion to suppress, and the court therefore concludes:
Based upon appellate counsel's response and the record, we conclude that trial counsel properly informed the juvenile about the rights of appeal. We are satisfied that before he absconded, Lamontae had sufficient information on the right of appeal and was able to make a fully informed decision about whether and how to exercise his right of appeal. See State ex rel. Flores v. State, 183 Wis.2d 587, 605, 516 N.W.2d 362, 367 (1994).
Thus, an appellate attorney may remain under an ethical obligation to pursue postconviction relief, notwithstanding the client's flight even though the court clearly is going to dismiss any appeal filed, under the appeal-forfeiture rule.
For authority approving the "practice" of dismissal of the appeal with prejudice under the "fugitive disentitlement" doctrine, see U.S. v. Awadalla, 357 F.3d 243 (2d Cir. 2004); and Goecke v. Branch, 514 U.S. 115 (1995) (upholding "well-established fugitive dismissal rule which provides that a defendant who attempts to escape justice after conviction forfeits her right to appeal"). In other words, "obediance to state custody [is] a procedural precondition of appellate rights," Taveras v. Smith, 2nd Cir No. 05-5579-pr, 9/11/06. What happens, though, when the defendant absconds for a relatively brief period of time and is then caught? In such an instance, the policies supporting the fugitive disentitlement doctrine may evaporate, see, e.g., Hanson v. Phillips, 442 F.3d 789 (2nd Cir 3/30/06) (“The first issue is whether we should dismiss this appeal pursuant to the fugitive disentitlement doctrine because Hanson was a fugitive from justice for two months. As Hanson has been apprehended and prosecuted for bail jumping, we conclude that there are no legitimate justifications for dismissing this appeal.”). Compare, Taveras (where application of fugitive disentitlement doctrine is discretionary in any given case, dismissal of pending appeal after fugitive's return to custody improper absent appointment of appellate counsel).

Authority for idea that absconded defendant must actually surrender such that return to custody via capture by authorities entitles court to dismiss appeal: State v. Fettel, OR App No. A131427, 1/3/07.

Extension of fugitive dismissal rule to civil appeals: Colombe v. Carlson, 2008 ND 201 (also: general discussion of rule, along with idea that because of severity of sanction it should be cautiously applied, ¶14).

Argument -- Affirmance of Lower Court on Alternative Theory
State v. Daniel G. Scheidell, 230 Wis.2d 189, 601 N.W.2d 284 (1999), on reconsideration of State v. Scheidell, 227 Wis.2d 285, 595 N.W.2d 661 (1999).
For Scheidell: Mitchell E. Cooper, SPD, Madison
Holding: Having previously refused to entertain Scheidell's alternative argument in support of the decision being appealed, 227 Wis. 2d at 288 n. 1, the supreme court on reconsideration, recognizes "that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. ..." (Quoting Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970).) Although the court now reaches the merits of these issues, it suggests that it is doing so as a discretionary matter, rather than by right: "In the exercise of judicial discretion, we have carefully considered the circuit court's ruling on the handprint evidence."
Claim Preclusion, § 802.06(8)(b)
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130
Issue/Holding:
 ¶12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner's claims. Here, the warden did so by raising claim preclusion in his brief responding to the substance of Barksdale's petition, thereby avoiding a waiver of the issue, notwithstanding his earlier motion to dismiss.
Waiver: Closing Argument – Failure to Move for Mistrial – Rule Inapplicable Where Objection Denied
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: ¶44, n. 14:
The State also argues that Cockrell waived his right to object on this ground because he did not move for a mistrial. We agree with Cockrell that the case the State relies on for this argument, State v. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606, does not support the State’s position. In Davidson, the defense counsel’s objections to the prosecutor’s comments in closing argument were sustained and the defense counsel moved on without asking for a mistrial; the court held this was a waiver. 236 Wis. 2d 537, ¶5. The rationale for finding a waiver in this circumstance is that, when the court sustains the objection, without a request for a mistrial “all [the court] can assume is that the defendant was satisfied with the court’s ruling and curative measure, and that he had no further objections.” Neely v. State, 97 Wis. 2d 38, 55, 292 N.W.2d 859 (1980) (cited in Davidson, 236 Wis. 2d 537, ¶86). This rationale does not apply when the court has overruled the objection, as it did here.
Waiver – Closing Argument – Failure to Move for Mistrial
State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver:
¶61      The State points out that, in denying Schutte’s motion for postconviction relief, the trial court observed that the prosecutor’s discussion of “sympathy” in his rebuttal was largely a counter to defense arguments regarding the impact the “accident” had on Schutte. For example, defense counsel told jurors, “And I would ask you to consider [Schutte], who’s a victim in this accident also. She was seriously injured. She lost her boyfriend. She lost her best friend and lost another friend. No matter what the verdict is, she won’t move on from this.” The State also notes that courts in other states have concluded that it is not improper argument for a prosecutor to appeal to jurors to “send a message to the community” or to hold a defendant “accountable.” [12]
 [12] See, e.g., Jowers v. State, 613 S.E.2d 14, 17 (Ga. Ct. App. 2005) (“‘It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community, or to stress the need for enforcement of the laws and to impress on the jury its responsibility in that regard.’”); State v. Collins, 150 S.W.3d 340, 354 (Mo. Ct. App. 2004) (“The State may argue that the jury should ‘send a message’ that society will not tolerate certain conduct.”); People v. Howell, 831 N.E.2d 681, 692 (Ill. Ct. App. 2005) (not error for a prosecutor to ask jurors to “hold[] the defendant accountable for his actions”); Commonwealth v. Wheeler, 645 A.2d 853, 859 (Pa. Super. Ct. 1994) (not error for a prosecutor to tell jurors that “defendants should be held ‘accountable to the law of a civilized people.’”).
Waiver – Closing Argument: Failure to Move for Mistrial
State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis
Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606. Although “plain” or “fundamental” error may not be waived, the test is whether the trial was rendered so unfair as to deny due process, ¶29. In this instance, the claimed error (prosecutorial comments exhorting jury to consider whether the State would give a witness “consideration … without any regard for the truthfulness of the statements,” ¶16) “were not so egregious as to constitute plain error”: “The prosecutor’s comments were limited in scope and, following objections, the prosecutor reminded the jurors that they, and not she, were the arbiters of witness credibility. The court also issued a curative instruction to the jury. Rockette made no motion for mistrial after the court addressed the objections,” ¶30.
Just goes to show how very difficult it is to obtain reversal on the basis of closing argument. There cannot be the slightest doubt that the prosecutorial comments were way over the line, violating the fundamental rule against vouching. As the court of appeals itself said, not so long ago, State v. Steven T. Smith, 2003 WI App 234, ¶23 (finding reversible error in a “closing argument [that] unfairly referenced matters not in the record and vouched for the credibility of the police witnesses”):
¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor's conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer “is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence.” State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). “Argument on matters not in evidence is improper.” State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).
It would have been nice, then, had the court at least paid lip service to this principle of improper prosecutorial vouching. Perhaps the evidence was overwhelming, or the comments indeed isolated enough that the curative instruction sufficed to overcome the error—but there ought to been some recognition by the court that the comments clearly were improper. If, that is, the court aims to deter a repetition.
Closing Argument -- Failure to Move for Mistrial
State v. Dale H. Davidson, 2000 WI 91, 236 Wis. 2d 537, 613 N.W.2d 606, reversing   State v. Davidson, 222 Wis. 2d 233, 589 N.W.2d 038
For Davidson: Jerome F. Buting & Pamela Moorshead
Issue: Whether objection to the prosecutor's closing argument was waived by failing to move for mistrial.
Holding: Although Davidson objected to the closing argument, his failure to also move for mistrial waived the objection. ¶86. (Note: the court proceeds to review the waived objections under both plain error and interest-of-justice rationales, and denies relief. ¶88.)
Competency of Trial Court
Village of Trempeleau v. Mike R. Mikrut, 2004 WI 79, affirming unpublished decision
Issue/Holding: (Emphasis supplied)
¶15. Mikrut did not raise his challenge to the circuit court's competency until long after the judgment against him had been upheld on appeal. The circuit court and the court of appeals therefore held that the argument was waived. …

¶18. Wisconsin case law is inconsistent on the question of whether a challenge to the circuit court's competency is subject to the common-law rule of waiver. …

¶26. To summarize, the cases regarding the waiver rule as applied to competency challenges have variously held as follows: 1) competency challenges cannot be waived at all (Nadia S.); 2) competency challenges cannot be waived if the alleged lack of competency relates to noncompliance with mandatory statutory time limitations, but no clear rule exists in other situations (B.J.N.); 3) competency challenges may be raised for the first time on direct appeal but are waived if not raised on direct appeal, that is, if raised for the first time on collateral challenge (Mueller); 4) competency challenges are waived for purposes of appeal if not first raised in the circuit court (G.L.K.); and 5) competency challenges are waived if not raised in the initial pleading (Wall). This conflicting body of case law cannot be reconciled.

¶27. We conclude that the following principles are sound and should be maintained: the common-law waiver rule applies to challenges to the circuit court's competency, such that a challenge to the court's competency will be deemed waived if not raised in the circuit court, subject to the inherent authority of the reviewing court to disregard the waiver and address the merits of the unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35. Because competency does not equate with subject matter jurisdiction, we see no reason not to apply the rule of waiver to these challenges as a general matter. A judgment rendered where competency is lacking is not void for lack of subject matter jurisdiction. Accordingly, a categorical rule that competency objections can never be waived is not justified. We withdraw the overbroad language in Nadia S. that attributed such a categorical rule of nonwaiver to the decision in B.J.N.

¶28. On the other hand, the approach in Wall was also unjustified. The failure to raise an objection to competency in a notice of appearance does not waive the right to bring such an objection in the circuit court action. We overrule Wall to the extent that it purported to establish such a restrictive pleading waiver rule.

¶30. Accordingly, we hold that challenges to the circuit court's competency are waived if not raised in the circuit court, subject to the reviewing court's inherent authority to overlook a waiver in appropriate cases or engage in discretionary review of a waived competency challenge pursuant to Wis. Stat. §§ 751.06 or 752.35. Because the competency challenge in this case is not premised upon noncompliance with statutory time limitations, we do not decide whether the particularized rule of nonwaiver stated in B.J.N. (statutory time periods cannot be waived) should be maintained.

¶38. We conclude that challenges to the circuit court's competency are waived if not raised in the circuit court. The waiver rule is a rule of judicial administration, and therefore a reviewing court has inherent authority to disregard a waiver and address a competency argument in appropriate cases. Also, Wis. Stat. §§ 751.06 and 752.35 may provide an avenue for discretionary review of an otherwise waived competency challenge in extraordinary cases. In addition, Wis. Stat. § 806.07(1)(h) may provide a vehicle for collateral relief from judgment on the basis of an otherwise waived competency argument--again, however, only in extraordinary cases. Mikrut's challenge to the circuit court's competency was waived.

Confrontation -- Crawford Issue, Where Trial Held Well Before Crawford Decided
State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers
Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 Crawford decision by well over a year. See State v. Savanh, 2005 WI App 245, ¶11 n.2, No. 2004AP2583-CR,” ¶41 n. 9.
Confrontation -- Relevance Objection Insufficient
State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall
Issue/Holding: An objection on relevancy grounds does not preserve a confrontation-based argument, ¶14.
Contemporaneous Objection -- Policies Advanced Via Motion In Limine
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant waived an objection to the violation of an in limine order, by waiting until a recess to enter an objection.
Holding:
¶17. When the State violated the stipulation and the court's order at trial, English- Lancaster did not immediately object. Instead, he first raised the issue when the jury was next excused. The State's argument for application of the contemporaneous objection rule puts English-Lancaster in a classic 'Catch-22' position. By not objecting, English-Lancaster is held to waiver. By objecting, English-Lancaster draws the jury's attention to the very prejudicial other acts evidence that the trial court had already ruled inadmissible. Recalling that one of the purposes of the contemporaneous objection rule is fairness (Davis, 199 Wis. 2d at 518), we will not apply the rule to permit such an unfair dilemma. The facts of this case do not demonstrate that English-Lancaster tactically laid in the weeds and then raised the issue later only when it was to his advantage. Erickson, 227 Wis. 2d at 766. We reject the State's contemporaneous objection argument.
Constitutionality of Statute -- Facial Challenge
State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell
Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:
¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void. See Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965). Once again, the premise behind the rule is simple. Circuit courts have original jurisdiction over all matters civil and criminal, except as otherwise provided by law. If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.

¶19 We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim. [8]


[8] Common law principles of waiver generally apply to Bush's "as applied" constitutional challenge. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (noting that the waiver rule exists to promote efficiency and fairness); see also State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Trochinski, 2002 WI 56, ¶34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. Because Bush failed to raise this issue in his earlier appeals, and because we do not have all components of the record, we conclude that Bush has waived his as applied challenge. However, we decline to reach the question of whether a procedural bar, similar to one announced in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), applies.
The court of appeals applied a serial-litigation bar to Bush’s challenge and thus refused to reach the merits at all, 2004 WI App 193, ¶¶13-19, hence it’s fair to characterize the supreme court result as “overruling in part” the court of appeals’ holding. Yet, the supreme court explicitly leaves open the possibility of such a bar, in the footnote reproduced above. Presumably, such a bar is limited to as-applied challenges, given that the court proceeds to reach the merits of the facial challenge. For criticism of applying Escalona-Naranjo to SVP commitments, go here to summary of court of appeals Bush decision, under “Serial Litigation Bar” topic heading, and criticism of same. Because the supreme court holds open the possibility of a serial litigation bar, that summary will remain posted.
Waiver -- Constitutionality of Statute -- Facial Challenge
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers
Issue/Holding: ¶7 n. 3:
Because Nelson is making facial challenges to the constitutionality of chapter 980, the State’s assertion that Nelson has waived his constitutional arguments lacks merit. See State v. Bush, 2005 WI 103, ¶19, 283 Wis. 2d 90, 699 N.W.2d 80 (“[B]ecause Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court [and] ... cannot be waived ….”), cert. denied, 126 S. Ct. 631 (2005).
Constitutionality of Statute
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/010350.pdf
Issue/Holding: Although a facial challenge to the constitutionality of a statute is not waived by a guilty plea (because such a defect would go to subject matter jurisdiction, something not subject to waiver), an “as applied” challenged is waived by the plea. ¶46.
Evidence, Admissibility -- Sufficiency of Objection
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue: Whether objection to admissibility of a defendant’s statement on the ground that it was “an offer of settlement” (which thus raised a § 904.08 bar) sufficed to raise a § 904.10 objection of an inadmissible offer to plead guilty.
Holding:
¶17      First, at the very least, trial counsel’s objection should have led the court to Wis. Stat. §  904.08, which in turn would have brought Wis. Stat. §  904.10 to the court’s attention. Counsel used the phrase “offer to compromise” in framing her objection, and § 904.08 contains virtually identical language. See State v. Corey J.G., 215 Wis. 2d 395, 407 & n.7, 572 N.W.2d 845 (1998) (stating that although an objection must be sufficiently specific to apprise the trial court of the grounds on which it is based, it is not necessary for counsel to cite the precise statutory section at issue). Section 904.10 lies on the facing page to this statute directly in the reader’s field of vision in the current version of our statutes. Moreover, § 904.10 is directly on point. It categorically mandates the exclusion of plea offers. See State v. Mason, 132 Wis. 2d 427, 432-33, 393 N.W.2d 102 (Ct. App. 1986) (holding that “is not admissible” language in § 904.10 intended a prohibition “for any purpose”). Under the circumstances, § 904.10 was simply too conspicuous not to notice.

¶18      Second, one could reasonably conclude that Norwood ’s trial counsel did adequately preserve an objection based on Wis. Stat. § 904.10. Although it may not have been technically correct to characterize Norwood ’s letter as an “offer of settlement,” counsel appears to have used the term loosely to refer to the ultimate disposition of a case. …

¶19      Third, if we apply waiver to this case, Norwood would probably have grounds to claim ineffective assistance of counsel. Counsel performs ineffectively when his or her performance is deficient and prejudices the client’s defense. …

Failure to Raise Issue with Sufficient Prominence
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶8. As a threshold matter, we reject Edwards' challenge to the trial court's order staying Edwards' conditional jail time because the order was issued ex parte and without notice. We hold that Edwards failed to raise this issue with sufficient prominence before the trial court. Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16 n.3, 246 Wis. 2d 385, 630 N.W.2d 772 ("A party must raise an issue with sufficient prominence such that the trial court understands that it is called upon to make a ruling."). True, Edwards' motion stated as a matter of historical fact that the trial court had amended the judgment of conviction without a hearing. However, Edwards never argued this fact as a basis for the confinement credit he was seeking. Since Edwards failed to signal that this was a basis for his motion, the trial court understandably did not speak to this fact in its ruling.4
4 Even if we were to address the issue on the merits, we would reject Edwards' argument because he has failed to demonstrate any prejudice. Although the trial court entered the stay order ex parte, the court functionally revisited the question at the postconviction proceeding and confirmed its prior ruling.
(This ruling is incoherent: if Edwards didn’t raise the issue with “sufficient prominence” to induce a ruling, then how is that the trial court indeed “functionally revisited the question”? And what, for that matte,r does the court mean by re-visited? The issue – whether the trial court erred in modifying a probation condition ex parte – was never “visited” until the postconviction motion; the very motion the court of appeals says didn’t sufficiently raise the issue. Nonetheless, the principle is worth absorbing: the theory supporting a request for relief must be made explicit and attention adequately drawn to it.)
Failure to Develop Argument on Appeal
State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding: Norman’s failure on appeal to develop an argument analytically necessary to the issue he raises waives his right to have that issue reviewed. ¶64.
Defendant's Introduction of Evidence Doesn't Waive Challenge to Admissibility Where Trial Court Had Deemed Evidence Admissible on Motion In Limine
State v. Gary M.B., 2004 WI 33, affirming 2003 WI App 72, 261 Wis. 2d 811, 661 N.W.2d 435
For Gary M.B.: T. Christopher Kelly
Issue: Whether defendant’s introduction of his/ her prior criminal record, after objection to its admissibility was overruled, waived the objection.
Holding:
¶11. Under the doctrine of strategic waiver, also known as invited error, "[a] defendant cannot create his own error by deliberate choice of strategy and then ask to receive benefit from that error on appeal." Vanlue, 87 Wis. 2d at 460-61. Thus, whether a defendant has strategically waived an objection is a question of law subject to de novo review. See State v. Ruud, 41 Wis. 2d 720, 726, 165 N.W.2d 153 (1969). One commentator has remarked that Wisconsin's strategic waiver rule:
prevents a party from counterattacking with otherwise inadmissible evidence when he has deliberately chosen not to object with the aim of using the otherwise inadmissible evidence to his own advantage. . . . The flip side of this coin is that a party who does object to the use of inadmissible evidence by his opponent does not forgo his right to claim error on appeal merely because he makes an effort to use the same or similar evidence in a defensive fashion after he has failed in his effort to exclude the evidence.
1 Wigmore, Evidence § 15, at 733 n.3 (Tiller's rev. 1983)(emphasis in original) (citing Vanlue, 87 Wis. 2d at 460-62). Thus, there is a distinction between a party's use of objected to evidence for his own benefit and the use of such evidence purely for defensive purposes. Id., § 18, at 836-38 & n.37 (citing Vanlue, 87 Wis. 2d at 460-62).

¶14. Vanlue is directly on point with the present case. However, the State argues that we should overrule the court of appeals' holding in Vanlue regarding strategic waiver in light of Ohler v. United States, 529 U.S. 753 (2000); and State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198.

...

¶17. This court is not bound to follow Ohler. … While decisions of the Supreme Court interpreting the Federal Rules of Evidence may be persuasive authority, they are not binding on this court. State v. Blalock, 150 Wis. 2d 688, 702, 442 N.W.2d 514 (Ct. App. 1989). Ohler involved a judicial formulation of the strategic waiver rule to be used in federal courts; the Court's ruling did not involve a question of federal constitutional law or a construction of the Federal Rules of Evidence. The Court's formulation of the strategic waiver rule in Ohler is contrary to the approach Wisconsin courts have utilized. Finally, as the dissent recognized in Ohler, the majority's holding is against the great weight of academic authority. See Ohler, 529 U.S. at 762-63 (Souter, J., dissenting)(collecting authority).

¶18. … Therefore, we conclude that the court of appeals' formulation of the strategic waiver doctrine in Vanlue was correct and hold that under Wisconsin law, a defendant does not commit strategic waiver when he unsuccessfully objects to the introduction of evidence and preemptively introduces the evidence in an attempt to mitigate its prejudicial effect.

To date, Wisconsin decisions typically have followed federal decisions, especially the Supreme Court, interpreting FRE. After all, our evidence code was adopted from FRE. That alone makes this decision interesting. Federal decisions no doubt remain “persuasive,” but there’s now some wiggle room. Whether that’s a good thing in any given case remains to be seen, but this particular case is a fine example of federalism, one state choosing to go its own way. (Now, if federalism fever would only spread to search and seizure doctrine … )

Also note: The seminal case in this area, U.S. v. Luce, 468 U.S. 38 (1984), holds that a defendant must testify in order to preserve a challenge to an in limine ruling allowing impeachment with prior convictions; that holding was cited with approval in State v. Frank, 2002 WI App 31, 250 Wis. 2d 95, 640 N.W.2d 198. Our court obviously deemed that situation distinguishable from Gary M.B.'s. But the cautious practitioner will be sensitive to the possibility of the extension of Ohler into other areas; see discussion, for example, in People v. Boyd, MI SCt No. 118021, 7/1/04 (extending rule so that "to preserve for appellate review a challenge to a trial court's ruling in limine allowing into evidence a defendant's exercise of his Fifth Amendment privilege, the defendant must testify at trial").

Dismissal Motion -- Ruling Reserved Until After Defense Case
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 right to review of a motion to dismiss at the close of the state's case waived by failing to object to the trial court's delay in ruling until after the defense presents its case.
Holding: Although "the better practice is for trial courts to decide the motion at the close of the State's case," the defense does not waive its right of review of the motion if the trial court defers ruling until after the defense case. ¶¶9-10.
Guilty Plea Waiver Rule – Generally, Exception for IAC Claim
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding:
¶13      A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment. State v. Kelty, 2006 WI 101, ¶43, __Wis. 2d__, 716 N.W.2d 886. Thus, though Milanes’ underlying claims involve a Fifth Amendment violation and a statutory defense, the ultimate question on this appeal is not whether these claims were valid, but whether his counsel was ineffective in his handling of them.
Guilty Plea Waiver Rule – Plea Bargain Agreement to Relinquish Attack on Guilty Plea
State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.
Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”
Holding:
¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder; (2) Bembenek would be eligible, under her new sentence for second-degree murder, for immediate release from prison to parole; (3) the State would no longer need to devote significant resources to Bembenek’s numerous collateral attacks on her convictions; and (4) Bembenek had been punished proportionately to the crime for which she was now convicted. Additionally, the plea agreement provided a final disposition in the murder case of Schultz for both parties and the community at large. There was a mutuality of assent to the terms of the plea agreement which was respected by Bembenek for ten years, until 2002, when she filed her motion for DNA testing and acquittal.

¶16      Bembenek’s no contest plea is equivalent to a guilty plea. “The general rule is that a guilty, no contest, or Alford [6] plea ‘waives all nonjurisdictional defects, including constitutional claims[.]’” State v. Kelty, 2006 WI 101, ¶18, ___ Wis. 2d ___, 716 N.W.2d 886 (citing State v. Multaler, 2002 WI 35, ¶54, 252 Wis. 2d 54, 643 N.W.2d 437). This is known as the guilty-plea-waiver rule. Kelty, 716 N.W.2d 886, ¶18. [7] Here Bembenek entered into a legally valid plea agreement. She entered into it knowingly, voluntarily and intelligently. See State v. Bangert, 131 Wis. 2d 246, 267-72, 389 N.W.2d 12 (1986) (holding that guilty and no contest pleas are constitutionally valid if entered knowingly, intelligently and voluntarily). She received substantial benefits from that agreement. In that plea agreement, Bembenek specifically waived her right to claim her innocence, and her right to collaterally attack any evidence which was underlying the conviction. Accordingly, Bembenek waived any right to DNA testing of that evidence or court action to pursue such tests.

As the court suggests (fn. 7), plea-bargained waiver of the right to appeal is a relative commonplace in federal practice. One thing sticks out, though: there is no federal constitutional right to appeal—put aside the idea that where the state does grant such a right it can’t as a matter of due process or equal protection impose arbitrary barriers—but there is a state constitutional right. State v. McDonald, 144 Wis.2d 531, 536-37, 424 N.W.2d 411 (1988) (“This court has consistently recognized that a defendant has a constitutional as well as a statutory right to an appeal. Art. I, sec. 21, Wis. Const.; sec. 808.03(1), Stats.”). Does this distinction matter? Hard to say; the court of appeals doesn’t mention it. There are, to be sure, recognized limits on enforceability, but they exist at the margins, see block quote in fn. 7, and the well-developed body of caselaw on bargained appeal-waiver will have to be reviewed for particular examples.

The net result of this case seems clear, though: the mere possibility of actual innocence is not a basis to obviate waiver. It’s not a far stretch from that idea to the idea that even a compelling showing of actual innocence isn’t enough, but that suggests another wrinkle. Plea agreements that are clearly against public policy are “illegal” and “cannot be respected by the courts,” Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186 (1976)); distinguished in and further explicated by State v. McQuay, 154 Wis.2d 116, 124, 452 N.W.2d 377 (1990). Is it against public policy to preclude a defendant from establishing actual innocence through DNA testing; and, if so, does that make a no-appeal plea bargain unenforceable? You'll have to decide for yourself.

Double Jeopardy -- Guilty Plea Waiver Rule
State v. Rachel W. Kelty, 2006 WI 101, reversing unpublished decision
For Kelty: Michael J. Fairchild
Issue/Holding:
¶2        We are asked to decide whether an otherwise satisfactory guilty plea is sufficient to relinquish a double jeopardy/multiplicity challenge upon direct appeal. We conclude that a guilty plea relinquishes the right to assert a multiplicity claim when the claim cannot be resolved on the record. When a defendant enters a knowing, intelligent, and voluntary guilty plea, the nature and effect of the plea necessarily mean that the defendant gives up the right to a fact-finding hearing on the propriety of multiple charges. United States v. Broce, 488 U.S. 563, 576 (1989).

¶3        Our decision should not be understood to render guilty pleas impervious to double jeopardy challenges. A defendant retains the right (1) to challenge whether a plea is knowing, intelligent, and voluntary by pointing to errors in the plea colloquy pursuant to State v. Brown, 2006 WI 100, __ Wis. 2d __, __ N.W.2d __ and State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986); (2) to claim the ineffective assistance of counsel pursuant to State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996); and (3) to challenge the authority of the state to prosecute her and the power of a court to enter the conviction or impose the sentence, where the existing record allows the court to determine whether the defendant's double jeopardy rights have been violated. See Broce, 488 U.S. at 569, 574-75. [3] Because Kelty's attempt to withdraw her guilty plea cannot meet any of these grounds for withdrawal, [4] we reverse the court of appeals.

The court undertakes an exploration of the “guilty plea waiver” rule. Highlights: the unembellished pronouncement of a number of reported Wisconsin cases that a guilty plea does not waive a double jeopardy claim turns out to be something of an overstatement. Surprisingly, no prior case discusses “whether a defendant who seeks to withdraw a guilty plea on double jeopardy grounds should be granted a fact-finding hearing, at which evidence will be presented, so that the court can determine whether the charges to which she pled are multiplicitous,” ¶14. The court now says there shouldn’t be a hearing in this situation. But first, the basics.

Generally a guilty plea waives all nonjurisdictional defects, ¶18, so why should there be an exception at all for double jeopardy? The court is less than clear on this point, but it is readily stated: because a double jeopardy claim is indeed in the nature of a jurisdictional defense; a claim that conviction (or sentence) violates double jeopardy is a challenge to the State’s power to exact punishment. (The court hints at this very doctrinal basis for the exception, ¶26, but no more than that.) As the court notes, the first Wisconsin case to recognize the exception was State v. Morris, 108 Wis. 2d 282, 284 n.2, 322 N.W.2d 264 (1982) which “was somewhat unusual in that it overruled, sub silentio, a number of Wisconsin cases,” ¶21. But this wasn’t really unusual, because in fact Menna v. New York, 423 U.S. 61, 62 (1975)—cited by Morris—did the overruling. And the passage from Menna relied on by Morris was: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.” That is simply another way of saying that where double jeopardy denies a state the power to proceed against a defendant then a guilty plea doesn’t bar a challenge to the state’s authority to impose punishment on the plea. That, then, is the background.

The wrinkle here is that Kelty’s claim involves a “unit-of-prosecution” claim (whether multiple counts under the same statute are distinct on the specific facts), which “is significant because resolving this type of claim often requires close scrutiny of the facts to determine whether the defendant's underlying conduct was identical in fact. … Resolution of a unit-of-prosecution challenge is likely to be more fact dependent than other types of double jeopardy challenge, and thus, less susceptible to successful attack on appeal, since a guilty plea relinquishes a defendant's right to fact-finding into disputed or uncertain facts,” ¶17 n. 9. Morris, by contrast, dealt with the purely legal question of whether separate convictions could be entered under separate statutes (no, because one was a penalty enhancer not a separate substantive offense); indeed, Morris correctly invoked Menna, and nothing in the present decision would affect Morris were it to be litigated today. But as just suggested, the unresolved fact-contingent nature of Kelty’s claim makes all the difference to waiver; the court now, in effect, applies Broce to limit the waiver exception to instances where the double jeopardy issue appears of record, ¶34. This means, more concretely, that a guilty plea waives the right to a fact-finding hearing on a double jeopardy claim, ¶38. Again: “a court will consider the merits of a defendant's double jeopardy challenge if it can be resolved on the record as it existed at the time the defendant pled,” ¶38. Kelty’s claim was fact-contingent rather than established in the record and thus waived by her plea.

What, though, of a defendant who has raised but lost a DJ claim after a fact-finding hearing before entering a guilty plea? The issue would then expressly satisfy the condition just quoted in that it is capable of resolution on the record at the time of plea. See also ¶46 (“Absent an express waiver, a guilty plea relinquishes a double jeopardy claim if a court is unable to determine from the record whether there has been a constitutional violation. Our inquiry, therefore, is whether it is possible to resolve Kelty's multiplicity claim on the current record.”—if a pre-plea hearing has in fact been held then it would be possible to resolve the claim on review of the current record.) Such a claim might well be allowed to proceed.

Does the decision work any large changes? As noted, Morris itself isn’t overruled. The court does overrule the holding of State v. Hubbard, 206 Wis. 2d 651, 656, 558 N.W.2d 126 (Ct. App. 1996) that waiver of a double jeopardy claim must be express, ¶¶33-34, but goes on to urge that express waivers nonetheless be taken as a matter of practice, “to guard against the possibility of reversible error,” ¶45. Can you, though, waive a valid DJ claim that appears of record? If the defect is, as suggested above, tantamount to a subject-matter jurisdictional error (power of the state to hale the defendant into court on the charge), and if a subject-matter jurisdictional claim can’t be waived even by a guilty plea, then can it be waived by express consent of the defendant? Note the long-standing principle that “(a) complaint which charges no offense is jurisdictionally defective and void and the defect cannot be waived by a guilty plea; the court does not have jurisdiction,” Champlain v. State, 53 Wis.2d 751, 754, 193 N.W.2d 868 (1972); restated recently in State v. Bush, 2005 WI 103, 283 Wis.2d 90, 699 N.W.2d 80 as, “a … matter of subject matter jurisdiction … cannot be waived.” Cannot be waived; not, cannot be waived except upon express consent of the defendant. We’ll have to see then if the court can implement its proposed express-waiver fix. Otherwise, the court of appeals had previously moved toward limiting the waiver-exception to instances where “the potential double jeopardy violation is facially ascertainable on the record without supplementation,” State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89, so it’s hard to see any major changes being effectuated by this decision.

Two final points. First, the court takes pains to say that waiver of a DJ issue doesn’t necessarily inhibit an argument that the plea wasn’t knowing, intelligent or voluntary, nor an argument that the plea was induced by ineffective assistance of counsel, ¶43. Second, the court reminds that “forfeiture” has a different coloration than “waiver,” ¶18 n. 11, a distinction taken up by the Chief’s concurrence, ¶¶62-63. Maybe it’ll catch on with litigants; if so, keep in mind that the distinction is much more well-developed in federal court: for recent examples, see e.g. United States v. Hawk, 434 F.3d 959, 962 (7th Cir. 2006) (“One forfeits his rights by failing to assert them in a timely manner. Where waiver is accomplished by intent, forfeiture comes about through neglect.”) (cite and quotes omitted.); and United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005) (“A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law.”)

Double Jeopardy -- Guilty Plea Waiver Rule
State v. Jimmie Davison2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School
Issue/Holding: A guilty plea doesn't waive a facially valid multiplicity claim. ¶13.
The supreme court subsequently stated: "Because Davison's multiplicity objection fails on the merits, we need not and do not decide whether, by pleading guilty, he waived his right to raise this claim," ¶111. However, the supreme court did not withdraw or overrule the court of appeals' language quoted above, which should therefore remain binding.
“Forfeiture” - Failure of Court Reporter to Take Down Tape as Played to Jury
State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09
For Huff: Jeffrey W. Jensen
Issue/Holding:
¶14       As we have seen, the trial court did not require its court reporter to take down the tapes as they were being played. This was error. See State v. Ruiz-Velez, 2008 WI App 169, ___ Wis. 2d ___, 762 N.W.2d 449. [2] Huff did not object to the trial court’s decision to not have the tapes reported as they were played, and accordingly, the error was forfeited and we thus analyze the issue under an ineffective-assistance-of-counsel rubric. See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683 N.W.2d 31, 41–42. [3]
“Forfeiture,” Generally
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶7        Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). We generally do not consider arguments not raised in the circuit court. See Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388.
 [3] The State uses the term forfeit and waiver interchangeably in its briefs. We note that our supreme court in State v. Ndina, 2009 WI 21, ¶¶29-30, __ Wis. 2d __, 761 N.W.2d 612, has determined that “forfeit” is the more appropriate term in the context presented here.
Forfeiture, Deferred Prosecution Agreement Argument
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶8        We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to Wis. Stat. § 971.37. At the hearing on Kaczmarski’s motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.
“Forfeiture,” Compared to “Waiver,” Generally
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding:
¶29      Although cases sometimes use the words "forfeiture" and "waiver" interchangeably, the two words embody very different legal concepts. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks and citation omitted).

¶30      In other words, some rights are forfeited when they are not claimed at trial; a mere failure to object constitutes a forfeiture of the right on appellate review. The purpose of the "forfeiture" rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal. [5]

¶31      In contrast, some rights are not lost by a counsel's or a litigant's mere failure to register an objection at trial. These rights are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right. …

“Forfeiture” (Compared to “Waiver”) of Right to Public Trial
State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser
Issue/Holding: (The court leaves unresolved the question of whether failure to object to closure of the courtroom works “waiver” (requiring knowingly relinquishment) or “forfeiture” (resting on mere failure to object) of right to public trial:)
¶34      Thus the court of appeals decision leaves open the question whether the defendant's failure to object at trial to closure on the ground of a violation of the Sixth Amendment constitutional right to public trial should be analyzed as a "waiver" or as a "forfeiture" of the defendant's right to raise the issue on appellate review.

¶35      The defendant and State dispute whether a "waiver" or "forfeiture" standard applies to a defendant's assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant's failure to object timely to a trial court's alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the Sixth Amendment right to a public trial, there must be an intelligent relinquishment of the known right. [9] Other cases conclude that a defendant loses (forfeits) the Sixth Amendment right to a public trial when the defendant or defense counsel fails to assert a timely objection at trial to the court's order of closure. [10]

¶38      … Here both parties failed to make objections in a timely manner, but they have fully briefed the important substantive issue. This court should, under these circumstances, reach the merits of the issue presented, namely whether the circuit court's order violated the defendant's right to a public trial, rather than address whether either or both of the parties waived or forfeited their right to make certain arguments on review.

The court of appeals held, 2007 WI App 268, ¶11, that "to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs"; the supreme court did not distinctly overrule that holding and it is therefore best to assume the necessity of contemporaneous objection to preserve the issue.
Motion in Limine as Preserving Failure to Object to Closing Argument
State v. Paul Venema, 2002 WI App 202
For Venema: Randall R. Garczynski
Issue/Holding: Failure to object to portions of closing argument didn't waive right to challenge them on appeal, where defendant obtained a "definitive pretrial ruling" which "served to preserve (his) position for appeal." ¶25 n. 9.
Judicial Communications with Jury during deliberations
State v. Lionel N. Anderson, 2006 WI 77, reversing 2005 WI App 238
For Anderson: Harry R. Hertel
Issue/Holding:
¶36      The parties agree with the court of appeals that the circuit court's communications with the jury outside the presence of the defendant is error, violating the defendant's constitutional and statutory right to be present.  We agree with the parties.

¶63      (W)hatever the requirement for an accused's waiver of the right to be present when a circuit court communicates with the jury, something more than the failure to object is needed to convert the challenge from a direct challenge to the alleged error to a claim of ineffective assistance of counsel.

¶64      We conclude that although neither the defendant nor defense counsel objected to the circuit court's communicating with the jury in the defendant's absence, the alleged error is treated as a direct challenge in the appellate court, not as a claim of ineffective assistance of counsel.

Jury deliberations is a “critical stage” for purposes of attachment of right to counsel, such that judicial communications to the jury during deliberations without notice to the defense violates right to counsel; mere failure to object doesn’t establish waiver because it isn’t accompanied by the colloquy necessary for waiver of counsel. However, harmless error analysis does apply. ¶¶65-76.
Judicial Intervention,  § 906.14
State v. Johnnie Carprue, 2004 WI 111, reversing 2003 WI App 148, 266 Wis. 2d 168, 667 N.W.2d 800
For Carprue: Stephanie G. Rapkin
Issue/Holding:

¶34 Subsection (3) of § 906.14 authorizes objections, and it "defers the requirement of a timely objection . . . to the next available opportunity when the jury is not present." Id. R202. This subsection appears to focus more on situations where the judge questions witnesses in front of a jury than where a judge questions a witness in a bench trial or outside the presence of a jury.

¶35 Given the explicit authority to object to a judge's action, Carprue could have challenged Judge Schellinger's decision to call Kenneth Morrow to the stand. He did not. He could have objected to a particular line of inquiry. He did not. He could have offered a motion in limine to bar the State from calling Morrow as a rebuttal witness. He did not. Consequently, Carprue waived his right to object to the judge's actions.

¶36 There are several reasons why we are disinclined to overlook the defendant's failure to timely object. First, the general rule in Wisconsin is that issues not raised in the circuit court are deemed waived. …

¶37 Second, the policies underlying the waiver rule are especially well illustrated in this case. …

¶38 Here, the judge acted outside the presence of the jury. The defendant would not have been embarrassed in front of the jury by launching an immediate objection to either of the judicial actions about which he now complains. …

¶39 Finally, because appellate courts are sensitive to judicial intervention by a trial judge in the form of judicial witnesses and judicial questioning, circuit courts are likely to be very cautious when they are given fair notice that their conduct raises concerns.

¶46 We presume that circuit judges try to be fair and impartial in their conduct of trials, and this presumption must be overcome by proof except in extreme cases of structural error. A defendant's failure to promptly raise concerns or object when he believes a judge is committing error constitutes waiver.

Delinquency -- Delinquency Adjudication: Challenge to Placement Order, Timeliness
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether challenge to an earlier change-of-placement delinquency order, as a means of challenging the jurisdictional basis for the current ch. 980 commitment petition, comes too late to be entertained.
Holding:
¶8 The State first responds that Tremaine’s challenge to the 2001 change of placement order is too late, and that this is an improper forum for a collateral attack on that order. We disagree. Tremaine does have the right to challenge that placement order in the context of this WIS. STAT. ch. 980 proceeding. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985). “When a court or other judicial body acts in excess of its jurisdiction, its orders or judgments are void and may be challenged at any time.” Id. (citation omitted). Furthermore, collateral attack is a proper method for challenging the order or judgment. Id. If Tremaine can demonstrate that the order was void, he is entitled to have it treated as a “legal nullity.” Id. at 99 (citation omitted). We will therefore consider Tremaine’s argument in the context of the ch. 980 petition.
Non-Jurisdictional Nature of Rule
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding: ¶28, n. 11: “While the trial court record supports the State's waiver argument, we nevertheless address the merits of the issue in rejecting Cash's challenge. See State v. Caban, 210 Wis. 2d 597, 609, 563 N.W.2d 501 (1997) (an appellate court has the power in the exercise of its discretion to consider issues raised for the first time on appeal).”
Non-Jurisdictional Nature of Rule
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, State v. Polashek, 2001 WI App 130, 246 Wis. 2d
For Polashek: Nila Jean Robinson
Issue/Holding:
¶25. Polashek first argues that the appeal was waived because it was not raised in the circuit court. We disagree. The court of appeals correctly noted that, although the general rule is that issues not raised in the circuit court are deemed waived, the rule is not absolute and does not relate to the appellate court's jurisdiction. See Apex Elec., 217 Wis. 2d at 384. Because the issue involved a question of law that had been fully briefed by both parties, and was of sufficient public interest to merit a decision, the court of appeals exercised its discretion to address the issue. Id.; Polashek, 2001 WI App 130, ¶28. We agree with the court of appeals' reasoning, and conclude that the court of appeals properly addressed the issue.
Waiver -- Objection to DA's Consultation with Witness during Break
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding: Failure to request order barring on prosecutor’s conferring with particular witness during break in testimony waived right to challenge such consultation, notwithstanding similar order with respect to different witness, and general sequestration order. ¶¶38-41.
Waiver – Invited Error – Defect in Deferred Prosecution Agreement
State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶12. Second, assuming this was a DPA, Wollenberg claims the judgment is void because the agreement was never in writing. Wollenberg, however, invited the error he alleges, and we normally will not review invited error. See Atkinson v. Mentzel, 211 Wis. 2d 628, 642-43, 566 N.W.2d 158 (Ct. App. 1997).

¶13. As noted, Wollenberg failed to timely raise this issue in the trial court. That alone fails to preserve the issue for review. See In re Eugene W., 2002 WI App 54, ¶13, 251 Wis. 2d 259, 641 N.W.2d 467. Instead, he expressly urged the court to adopt the terms of the plea agreement as recited by the prosecutor. He also agreed to the order deferring entry of judgment. The court followed the parties' joint recommendations, and under such circumstances we do not allow a defendant to cry foul on appeal. See In re Shawn B.N., 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (if error occurred, defense counsel invited it); Zindell v. Central Mut. Ins. Co., 222 Wis. 575, 582, 269 N.W. 327 (1936) (appellant cannot complain of errors induced by appellant).

Plea Bargain Breach
State v. Brian W. Sprang:, 2004 WI App 121
For Sprang: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶13 Before addressing Sprang’s claim of ineffective assistance of counsel, we must first address whether there was, in fact, a material and substantial breach of the plea agreement. State v. Naydihor, 2004 WI 43, ¶9, ___ Wis. 2d ___, 678 N.W.2d 220. If we conclude that there was not a breach of the plea agreement, then defense counsel’s failure to object would not constitute deficient performance. Id. We therefore turn to the primary issue on appeal— whether the State breached the terms of its plea agreement with Sprang.
Plea Bargain Breach
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding:
¶27 ... Here, Grindemann did object to the prosecutor's mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence 'properly before the court,' not on any claim that the State was violating either the terms or the 'spirit' of the plea agreement. Moreover, the court sustained the objection and admonished the prosecutor to '[b]e more cautious' in his comments, suggesting that the court agreed with Grindemann¹s point that it should not consider any uncharged offenses for which no evidence was presented. Thus, even if prosecutorial silence regarding uncharged offenses was an implied provision of the parties' plea agreement, Grindemann obtained 'specific performance' of that provision when the court sustained its objection.
Waiver - Public Trial: Removal of Defendant’s Family Members from Courtroom – Necessity of Contemporaneous Objection
State v. Dhosi J. Ndina, 2007 WI App 268, PFR filed 12/20/07
For Ndina: Richard L. Kaiser
Issue/Holding:
¶11   In order to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs. …

¶12   The purpose for the waiver rule has been often stated. A timely objection enables the trial court to avoid or correct any error with minimal disruption of the judicial process. State v. Boshcka, 178 Wis. 2d 628, 643, 496 N.W.2d 627 (Ct. App. 1992). Here, neither Ndina nor his defense counsel raised any objection to the trial court’s decision to remove several family members from the courtroom after the family members continued to cause disruption despite the trial court’s warnings. Thus, under such circumstances, the only context within which Ndina’s claim can be considered is whether his trial counsel provided ineffective assistance by failing to object to the trial court’s removal of his family from the courtroom for part of the trial. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (unobjected to error must be analyzed under ineffective assistance of counsel standards, even when error is of constitutional dimension).

Ruling by Trial Court on Objection -- Failure to Obtain
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.
Sentence -- Failure to Object to Inaccurate Information
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
On-Line Brief
Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes that it can't support the information now challenged; and defendant's postconviction motion showed that information was inaccurate and also established a basis for believing that he didn't have an adequate opportunity to refute the information. ¶26.
Statutory Double Jeopardy -- Guilty Plea Rule
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Claim of "statutory double jeopardy," § 939.71, not barred by guilty plea waiver rule; court therefore may be consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, state armed robbery.
Territorial Jurisdiction Defense
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue:
Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense.
Holding:
¶14 In this case, we need not decide whether a defendant may waive territorial jurisdiction altogether-that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin. We do resolve, however, whether a defendant may waive territorial jurisdiction when territorial jurisdiction exists under the original charge, but becomes questionable because the defendant accepts a plea agreement to a lesser-included charge. Under these circumstances, we conclude that territorial jurisdiction may be waived.
(Under the plea colloquy, Randle explicitly acknowledged that he was waiving all jurisdictional issues. ¶16.)
Failure to Raise Issue in PFR
State v. Jene R. Bodoh, 226 Wis.2d 718, 595 N.W.2d 330 (1999), affirming 220 Wis.2d 102, 582 N.W.2d 440 (Ct. App. 1998)
For Bodoh: Michael D. Mandelman.
Issue/Holding: Failure to raise an issue in the petition for review waives the right to argue it, though the court may nonetheless reach the merits under certain circumstances:
¶37 We decline to address this issue. Bodoh did not raise this issue in his petition for review. When this court grants a petition for review, “the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court.” Wis. Stat. § (Rule) 809.62(6). This court did not order Bodoh to address any issues not raised in his petition. His petition was granted only on the issues he raised which have been addressed above.

¶38 “It is the often-repeated rule in this State that issues not raised or considered in the trial court will not be considered for the first time on appeal.” Wirth v. Ehly, 93 Wis. 2d 433, 443, 287 N.W.2d 140 (1980) (citations omitted). An exception to this rule is usually made only when the new issue raised is a question of law, the parties have thoroughly briefed the issue, and there are no disputed issues of fact regarding the new issue. Id. at 444.

General
State v. Phonesavanh Vanmanivong, 2001 WI App 299, reversed, 2003 WI 41
For Vanmanivong: John J. Grau
Issue/Holding:
¶18. The State also argues that Vanmanivong waived his right to appeal this issue because he failed to object to the use of the unsworn materials. We disagree. The trial court's ruling indicates that a defense objection to the use of the unsworn material would have failed. ("My review of this affidavit, this statement, although not under oath, I'm satisfied provides the necessary trustworthiness. With that information it appears that the informants do not have any additional information as to the identity of the defendant.") In addition, Vanmanivong has no burden to insure that the trial court follows the law in exercising its discretion, and the trial court cannot exercise its discretion contrary to a clearly stated legal procedure.
The supreme court's reversal was on the merits of the grant of relief, not the preliminary, procedural point quoted above. Thus, the reversal doesn't affect the viability of this holding. See, e.g., State v. Gary M.B., 2003 WI App 72, ¶¶13 and id. n. 4 (supreme court reversal on merits, without reaching preliminary conclusion of non-waiver doesn't affect latter holding), affirmed on other grds., 2004 WI 33.
Waiver – Judicial Estoppel – Inapplicable to Mere Acquiescence to Ruling Subsequently Challenged
State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.
Judicial Estoppel
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding:
¶6       Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI. The court held a hearing on the issue, at which Thexton’s attorney proposed that the court order the prior PSI released to the parties, and the court did so. The State argues that Thexton’s trial counsel invited the error by specifically asking the circuit court to release the report. See Shawn B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App. 1992) (appellate court will not review error invited by appealing party). We agree that the issue is waived; specifically, Thexton is judicially estopped from claiming that the court erred in doing precisely what he asked. See Rusk County Dept. of Health and Human Servs. v. Thorson, 2005 WI App 37, ¶5 n.4, 278 Wis. 2d 638, 693 N.W.2d 318 (“judicial estoppel bars litigant from argument directly contradictory to circuit court argument” (citation omitted)).
Judicial Estoppel Bar to Argument
Olson v. Darlington Mutual Ins., 2006 WI App 204
Issue/Holding:
¶4        … The required elements of judicial estoppel are:
            First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument. 
Petty, 201 Wis. 2d at 348 (citing Harrison, 187 Wis. 2d at 497).

¶6        Because “a litigant is not forever bound to a losing argument,” there must be an action of the court adopting a party’s position to give rise to judicial estoppel. See id. Thus, in State v. Michels, 141 Wis. 2d 81, 97-98, 414 N.W.2d 311 (Ct. App. 1987), Michels was judicially estopped from arguing on appeal that the evidence was insufficient to support his conviction for manslaughter, when he had requested the trial court submit manslaughter to the jury as a lesser-included offense of second-degree murder. Similarly, in English-Lancaster, 252 Wis. 2d 388, ¶22, English-Lancaster was judicially estopped from challenging the sufficiency of a cautionary instruction he had requested. We said: “This is classic judicial estoppel. The position English-Lancaster took in the trial is clearly inconsistent with the one he assumes on appeal. At trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient.” Id. (emphasis added).

See also ¶10 n. 4:
Judicial estoppel has been properly invoked “mostly in criminal appeals where the defendant asserts one position at trial and a contrary position on appeal,” because they present the clearest cases of inconsistent arguments. Harrison v. LIRC, 187 Wis. 2d 491, 496, 523 N.W.2d 138 (Ct. App. 1994) (citation omitted). The Harrison court went on to state that although there may be other types of cases in which judicial estoppel will apply, it should be invoked cautiously: “Judicial estoppel, after all, is an equitable determination and should be used only when the positions taken are clearly inconsistent.” Id. at 497-98.
Judicial Estoppel Bar to Argument
DHHS v. Leonard M. Thorson, 2005 WI App 37
For Thorson: Carol A. Conklin
Issue/Holding: ¶5, fn. 4: Because “the County conceded in the circuit court that Thorson had no current ability to pay [it] cannot now be heard to argue that Thorson is able to pay, based on his income and lack of inhibitors to his earning ability. See State v. Michels, 141 Wis. 2d 81, 98, 414 N.W.2d 311 (Ct. App. 1987) (judicial estoppel bars litigant from argument directly contradictory to circuit court argument).”
Judicial Estoppel Bar to Argument
County of Milwaukee v. Edward S., 2001 WI App 169, PFR filed
For Edward S.: Richard D. Martin, SPD, Madison Appellate
Issue: Whether Edward S. is estopped from arguing that the trial court lost competency to proceed, when the basis for the argument was a delay caused by Edward S.'s own conduct.
Holding: Having fired his attorney and then stipulating to an adjournment so that he could obtain new counsel, Edward S. is judicially estopped from arguing that the adjournment led to an untimely final hearing. ¶¶10-11, citing State v. Petty, 201 Wis. 2d 337, 348, 548 N.W.2d 817 (1996).
Judicial Estoppel Bar to Argument
State v. Michael Johnson
For Johnson: David R. Karpe, 2001 WI App 105, PFR filed 5/18/01
Issue: Whether defendant's partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on appeal that the two counts are multiplicitous.
Holding:
¶10. Although judicial estoppel is not easily reduced to a pat formula, there are identifiable boundaries. Petty, 201 Wis. 2d at 348. First, the defendant's later position must be 'clearly inconsistent' with the earlier position. Id. Second, the facts at issue should be the same in both cases. Id. Finally, the party to be estopped must have convinced the first court to adopt its position. Id. Thus, although we permit a party to argue inconsistent positions in the alternative, 'once it has sold one to the court it cannot turn around and repudiate it in order to have a second victory.' Id. at 350 n.6. Instances in which a defendant in a criminal case reverses positions on appeal most often fit these parameters since the facts are the same and it is easier to discern whether the positions are clearly inconsistent. Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994)....

¶18. In Johnson's case, it was the State's decision to proceed with two separate charges. However, Johnson could have moved to dismiss one of the charges as multiplicitous. Instead he chose to take advantage of the separate charges in an attempt to limit his total criminal exposure. He requested that the lesser-included offense of possession be submitted to the jury for the cocaine in his pocket.

¶19. Johnson was victorious to the extent that he convinced the jury that he possessed the cocaine in his pocket without intent to deliver it. Unfortunately for Johnson and his trial strategy, it appears that the jury did not also believe that he knew nothing about the cocaine in the bathroom. But because the jury was partially convinced of Johnson's position on the facts, he cannot now enjoy a 'second victory' by reversing that position on appeal in order to assert a double jeopardy violation.

Analysis: Estoppel is (or should be) a double-edged sword. What happens when the state uses inconsistent theories to obtain conviction? The problem might seem obscure, but it's bound to come up sooner or later. An increasing number of cases indicates that the state's use of factually antagonistic theories of guilt may raise constitutional problems. See, e.g. Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000). The language used by Johnson -- "The doctrine of judicial estoppel is not directed at the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of its machinery," ¶9 -- might well be put to use in this other but related context. See further discussion, here. For a recent US Supreme Court case discussing judicial estoppel, see New Hampshire v. Maine. For application of doctrine to state, see e.g., Whaley v. Belleque, 9th Cir No. 06-35759, 3/24/08 ("under the doctrine of judicial estoppel, the state cannot now reverse its position in order to suit its current objectives").
Judicial Estoppel Bar to Argument -- Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.
Holding:
¶22. This is classic judicial estoppel. The position English-Lancaster took in the trial court is clearly inconsistent with the one he assumes on appeal. At trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient. The facts at issue here on appeal are the same as before the trial court. Finally, English-Lancaster requested and was provided with a cautionary instruction that he expressly approved without alteration. English-Lancaster cannot advocate a certain position in the trial court (requesting a cautionary instruction) and a contrary position on appeal (that the cautionary instruction was inadequate and a mistrial was necessary). See State v. Washington, 142 Wis. 2d 630, 635, 419 N.W.2d 275 (Ct. App. 1987). The doctrine of judicial estoppel bars us from addressing this argument.
Judicial Estoppel Bar to Argument -- Complete Adoption of Party's Position Required
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Judicial estoppel requires that the party's position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24.
Estoppel -- Reliance on Party's Position.
State Richard J. Kenyon, 225 Wis.2d 657, 593 N.W.2d 491 (Ct. App. 1999).
For Kenyon: Rex Anderegg.
Holding: Kenyon's change in position from trial to appeal doesn't fall within estoppel doctrine, because neither prosecution nor trial court relied on the changed position.
Judicial Estoppel, Generally
State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998)
For Darcy K.: Kenneth L. Lund, SPD, Madison Appellate
Issue/Holding: A party who prevailed at the trial level is judicially estopped, on appeal, from challenging the trial court's favorable action taken at his or her own request.
Judicial Substitution -- Failure to Seek Chief Judge's Review
Barbara R.K. v. James G., 2002 WI App 47
Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.
Holding:
¶9. ... The statute then provides: 'If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district ... if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request.' "Wis. Stat. § 801.58(2). Barbara did not avail herself of review by the chief judge....

¶14. We view the chief judge review procedure as analogous to exhaustion of administrative remedies. It is well settled that where a method of review is prescribed by statute and adequate relief may be obtained through the review procedure, the pursuit of administrative relief is a prerequisite to judicial review. Jackson County Iron Co. v. Musolf, 134 Wis. 2d 95, 102, 396 N.W.2d 323 (1986). The exhaustion doctrine promotes judicial efficiency by allowing conflicts to be resolved at the administrative level without resort to litigation.

¶15. Here, Wis. Stat. § 801.58(2) provides an avenue to facilitate review of denials of requests for substitution of judge. That avenue must be pursued in order to preserve the issue on appeal. If Barbara wanted to appeal the denial of her request for substitution, she was required to seek review by the chief judge. Since she did not, she has waived her right to appeal.

(Note: This is a civil case. The criminal statute, § 971.20 is worded differently, but at least arguably "it is the defendant's obligation to promptly seek review (of a denied substitution request), either by the chief judge of the administrative district or via a writ of prohibition." State ex rel. Nowak v. Circuit Court, 169 Wis.2d 395, 397, 485 N.W.2d 419 (Ct. App. 1992). A subsequent case suggests that a substitution issue may be preserved merely by going to trial, i.e., without seeking pretrial review. State v. Damaske, 212 Wis.2d 169, 186-87, 567 N.W.2d 905 (Ct. App. 1997).)
Multiplicity
State v. Edward Leon Jackson, 2004 WI App 190, PFR filed 10/15/04
For Jackson: Meredith J. Ross, LAIP, UW Law School
Issue/Holding:
¶4 The State, relying on State v. Kohler, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, argues that because Jackson did not raise a multiplicity challenge at trial, he has waived it. We agree. However, waiver is a rule of judicial administration, and we have discretion to consider a waived issue. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). Here, we exercise our discretion to address the substance of Jackson’s multiplicity challenge because it raises an ongoing legal issue that merits our attention.
“Kohler,” by the way, is misspelled: it’s Koller. However it’s spelled, that case is problematic for a number of reasons, not least because it leaves hanging the question of the State’s burden of proving distinct counts when the “multiplicity challenge [is] directed at proof, rather than pretrial allegations [.]” 2001 WI App 253, ¶38 (court doesn’t resolve whether burden is preponderance or beyond reasonable doubt). No matter: the argument in this case turns on statutory construction (whether, as a matter of law, § 939.31 supports two separate counts for the same transaction) and resolution of the issue, apparently along with proper spelling of Koller, awaits another day.)
Jury Selection -- Batson Objection, Timeliness: Prior to Jury's Swearing
State v. Dennis Jones, 218 Wis. 2d 599, 581 N.W.2d 561 (Ct. App. 1998)
For Jones: Michael S. Holzman
Issue/Holding:
The State argues that Jones's Batson objection, made after the jury was sworn, came too late. Jones responds that his objection was timely. We conclude that the defendant must make a Batson objection prior to the time the jury is sworn. If the objection is not made until after that time, the issue is waived.
Jury Polling: Response Indicating Non-Unanimous Verdict
State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough
Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.
Holding:
¶29 Ultimately, however, we need not determine whether to apply the waiver rule because we view the motion as timely made. Admittedly, Raye's counsel did not make a formal objection during the approximately five-minute period when Clark was alone with the court and counsel. However, after the third time that Clark disavowed the verdict, Raye's counsel stated, "I think that's enough." Shortly thereafter a recess was taken. Upon going back on the record after recess, Raye's counsel made a motion for a mistrial on the ground that the verdict was not unanimous. Given the circumstances, we conclude that the motion was timely and that it was not waived. Accordingly, we will reach the merits of Raye's claim.
Although finding the issue properly preserved, the court all but says (albeit in dicta) that such an issue is reviewable anyway, ¶¶26-27, citing the “analogous” instance of “propriety of a [trial] court’s inquiry into the numerical division of a stalled jury,” embodied by Brasfield v. U.S., 272 U.S. 448 (1926) and State v. McMahon, 186 Wis. 2d 68, 89, 519 N.W.2d 621 (Ct. App. 1994).
Multiplicity
State v. William Koller , 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate
Issue: Whether multiplicity claims were waived due to lack of objection until after trial.
Holding: Although it isn't necessary to raise a multiplicity challenge before trial, waiver attaches if "also omitted prior to the time the case was submitted to the jury." ¶40.
Analysis: The court's holding seems to be informed by two notions. First, fairness to the prosecutor:
¶42. It could be argued that the State should be required to anticipate multiplicity challenges during trial and, even in the absence of such a challenge, present evidence showing that multiple charging is justified, or lose its opportunity to do so. We are not persuaded. Trials are not structured to resolve multiplicity disputes and, absent notice, the State should not be required to prove facts supporting multiple charges for purposes of multiplicity analysis. ...
Second, multiplicity is strictly, necessarily, and invariably delegated to the trial court:
¶35. Koller complains that his trial counsel's failure to raise multiplicity challenges allowed the 'legally and factually complex issue of multiplicity to go to the jury.' This argument is based on a misunderstanding of the roles of judge and jury with respect to multiplicity disputes. These disputes are resolved by trial judges, not juries. ...

¶37. Because multiplicity is not a jury matter, it follows that when a multiplicity challenge is raised during trial, including after the State has rested, the trial court may allow the State to present additional evidence, normally without the jury present.

But the courts also says, in passing, that there's a real question as to what burden the state must satisfy -- preponderance, or beyond reasonable doubt -- in rebuffing a multiplicity challenge; the court leaves the question open. ¶38. If the issue is seen as a foundational one, then under § 901.04, preponderance could well be the correct standard. And the court's holding treats the matter as if it involves nothing more or less than preliminary admissibility. But if the question in reality is whether the state has proven each charge, then beyond reasonable doubt would seem applicable, as with any sufficient-proof question. The court's holding doesn't adequately address this distinction, which gets at the heart of the problem; instead we're left with a holding in search of a rationale. Leaving this question open only postpones the day of definitive resolution.)
Offer of Proof
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue/Holding: Where defendant was charged with theft and operating without consent relating to property and a vehicle that he had permission to take but failed to deliver to the agreed out-of-state destination, his proffer that he drove to a truck stop where he abandoned the vehicle was insufficient to preserve the issue of whether the trial erred in excluding his testimony due to failure to comply with notice of alibi requirement, § 971.23(8)(a) and (b):
¶16. We conclude, however, that there is a threshold problem in our consideration of whether Brown's proposed testimony constitutes an alibi for purposes of Wis. Stat. § 971.23(8). Although the State does not expressly argue that Brown made an insufficient offer of proof to preserve for appellate review the claimed error in the exclusion of his proposed testimony, its argument strongly suggests that is the case. The State notes in its argument, for example, that "Brown's proffer does not even indicate where Brown allegedly abandoned the truck, when he did so or what he meant by having or seeking `better prospects.'" The only indications in the record of what testimony Brown proposed to give were a one-sentence paraphrase by his counsel ("I drove the truck there and I abandoned it for better prospects.") and the court's similarly terse summary ("[H]e did have possession of the vehicle, left the vehicle at a truck stop and left the keys and left."). ...

¶19. Brown did not request an opportunity to give his testimony outside the presence of the jury as an offer of proof, and he did not submit an affidavit or other statement detailing what he planned to say. We thus do not know when or where Brown would have claimed he abandoned the truck, or whether he would have attempted to give an account of his subsequent movements. It is therefore difficult for us to determine whether his testimony would have truly constituted an alibi ("I was elsewhere.") as the State claims, or simply an attempt to negate certain elements of the charged offenses, as Brown suggests. Without a proper offer of proof, neither we nor the trial court can know with certainty what the contours of Brown's testimony would have been, or whether his testimony and the cross- examination it would necessarily invite, taken as a whole, would constitute an alibi defense.

¶20. In short, we conclude that Brown's offer of proof was inadequate for us to conclude on appeal that the testimony he wanted to give was not an alibi requiring notice under Wis. Stat. § 971.23(8). See, e.g., State v. Robinson, 146 Wis. 2d 315, 329, 431 N.W.2d 165 (1988) (concluding "that the offer of proof by the defendant did not state an evidentiary hypothesis underpinned by a sufficient statement of facts to enable this court to conclude with reasonable confidence that the evidentiary hypothesis could be sustained"); State v. Padilla, 110 Wis. 2d 414, 430, 329 N.W.2d 263 (Ct. App. 1982) ("`An offer of proof need not be syllogistically perfect but it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate's overstated assumption.'") (citation omitted).

(Brown was employed by a moving company but made it only about half-way, to Gary, Ind., where the truck and some of its original contents were found months later. As suggested, all he apparently wanted to testify to was that he'd abandoned the stuff; the learned trial court wouldn't allow it because he hadn't submitted a notice of alibi. Why is this an alibi -- "I was elsewhere" -- at all? The court doesn't say, indeed doesn't reach the alibi issue, but instead ducks it on the procedural point of insufficient offer of proof. But this seems to put the cart before the horse: if "alibi" wasn't implicated, then the testimony couldn't be barred for failure to comply with the notice of alibi statute. So, does this mean that, when the defendant's testimony might present an alibi but s/he didn't file a notice of alibi, the defendant has the burden of showing just how the testimony was in fact not related to alibi? Possibly, though the court certainly doesn't put it in these terms. But can the court put this onus a defendant? Terse or not, the proffer isn't self-evidently an alibi, which gets somewhat into the merits of the related question of whether there was a defense of territorial jurisdiction, which the court treats separately and is separately summarized. The proffer might support harmless-error affirmance, but that assumes that barring defendant's testimony (more concretely, barring him denial of the necessary element of intent) is subject to harmless error analysis as opposed to structural error. See, e.g., Commonwealth v. Caldron, 383 Mass. 86, 417 N.E.2d 958 (1981).)
Plain Error - Generally
State v. James D. Lammers, 2009 WI App 136, PFR filed 9/16/09
For Lammers: Amelia L. Bizzaro
Issue/Holding:
¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.

¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

Plain Error - Polygraph Evidence
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.
Holding: Plain error, § 901.03(4), requires "obvious" error, and is reserved for likely violations of basic constitutional right: "Frank identified no basic constitutional right implicated, and he concedes, '[t]here is no evidence in the record as to the time separation, if any, between the polygraph examination and the post-polygraph interview .....' The record does not reveal the circumstances under which Frank made his statements to Thompson. It is not possible to say that admission of the statements was error, much less "plain" error. Any perceived error is merely speculative." ¶25.
Presentation & Preservation of Argument -- Citing Relevant Authority
State v. Debra Noble, 2001 WI App 145, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman
Issue: Whether failure to cite relevant authority in support of appellate argument establishes waiver.
Holding:
¶11 ... But Noble cites no authority requiring a tape recording, a transcript, or a signed statement to show the falsity of a statement. In State v. Shaffer, 96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980), we said that arguments unsupported by relevant authority were inadequate and do not comply with WIS. STAT. § 809.19(1)(e), and that we would refuse to consider such arguments in the future. If there is relevant authority holding that only evidence that is tape recorded, transcribed, or signed by a defendant is sufficient to support a perjury conviction, Noble has failed to cite it. We see no reason to depart from Shaffer now.
Presentation & Preservation of Argument -- Footnotes
State v. Miguel Angel Santana-Lopez, 2000 WI App 122, 237 Wis.2d 332, 613 N.W.2d 918
For Santana-Lopez: Rex Anderegg
Issue/Holding: "We do not consider an argument mentioned only in a footnote to be adequately raised or preserved for appellate review." ¶6 n.4. (The holding, it should be mentioned, is itself contained in a footnote.).
Serial Litigation Bar (Escalona-Naranjo): Applicable to SVP Commitments
State v. Thomas H. Bush (II), 2004 WI App 193, reversed in part, 2005 WI 103
For Bush: Robert G. LeBell
Issue: Whether Bush, on appeal from denial of petition for release from SVP commitment, § 980.09(2), is procedurally barred from challenging the constitutionality of his underlying commitment because he could have raised such challenge in a prior appeal.
Holding:
¶13. Similarly, the reasoning of Escalona-Naranjo should apply to a petition for release under Wis. Stat. § 980.09(2). …

¶18. We need finality in litigation. While an individual committed under ch. 980 is entitled to petition for release and regular review of his commitment, it is undesirable to allow the individual to "raise some constitutional issues on appeal and strategically wait to raise other constitutional issues a few years later" when those later issues were known from the outset. See Escalona-Naranjo, 185 Wis. 2d at 185-86.

¶19. In much the same way as a prisoner challenging his sentence, Bush is attempting to argue his commitment is "in violation of the U.S. constitution or the constitution or laws of this state ...." See Wis. Stat. § 974.06(1); see also Escalona-Naranjo, 185 Wis. 2d at 179-180. He does not challenge the factual basis of or procedures underlying the denial of his petition for release.4 Like a revoked parolee filing multiple writs, Bush had an opportunity to "raise all claims of which he ... [was] aware in the original [petition]." See Macemon, 216 Wis. 2d at 343. Bush's constitutional challenges to ch. 980 could have and should have been raised in previous appeals and we therefore decline to address them further.

(As discussed above, the supreme court subsequently reached the merits; in effect, the court held that a serial litigation bar doesn't apply where a facial challenge is raised. But the court holds open the possibility of a serial-litigation bar in other contexts. The following ciritcism applies to the court of appeals' reasoning.)

Slovenly analysis, to be blunt. Start at the beginning, with a reminder that State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), encomium to finality and all, is nothing more or less than construction of a statute, § 974.06, which explicitly requires that all grounds available for relief be raised on direct appeal; see also State v. Anou Lo, 2003 WI 107. (Well, not quite “explicitly,” though that’s about the way the court saw it. Reason to doubt that construction might be advanced, but it simply can’t be doubted that the court engaged in statutory construction.) Where, then, is the statute articulating a legislative intent in favor of ch. 980 finality? The court identifies none. There is none. Instead, the court uses a sleight of hand analogy: Escalona-Naranjo applies on certiorari challenges to probation / parole revocations, State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 342, 576 N.W.2d 84 (Ct. App. 1998), which are – like ch. 980 and for that matter § 974.06 proceedings – civil. Therefore …

¶13 … Any constitutional challenge to the statutory commitment scheme should be raised in appeal of the initial commitment. A denial of the petition for release is similar to probation revocation in that the initial proceedings-either the initial commitment or the underlying criminal action-are not the subject matter in controversy. When probation is revoked, there can be no challenge to the underlying conviction; appellate review is limited to the sentencing after revocation. See State v. Drake, 184 Wis. 2d 396, 399, 515 N.W.2d 923 (Ct. App. 1994). When a petition for release is filed, the only factual issue in controversy is whether, at the time of the petition, the committee remains sexually violent, not whether the initial commitment was appropriate.
But the analogy simply overlooks a crucial fact: certiorari challenge to revocation is a common law procedure, State ex rel. Johnson v. Cady, 50 Wis. 2d 546, 185 N.W.2d 306 (1971). It’s judge-made, not legislative, which leaves quite a bit of room for judicial construction. In short, the court has posited two inapplicable lines of cases, under inapt statutory and common law procedure, to support the desired result: This might be well and good if Bush were raising some common law challenge, or if ch. 980 had some statute linguistically similar to § 974.06. Instead, the courts have consistently placed ch. 980 under civil appeal rules, e.g. State v. John R. Brunette, 212 Wis. 2d 139, 567 N.W.2d 647 (Ct. App. 1997) (notice of appeal deadline controlled by § 808.04(1), therefore can’t be extended); State v. Thomas Treadway, 2002 WI App 195 (civil rules require filing of post-verdict motions within 20 days of commitment order), which means that you can mount what is in effect a collateral attack under § 806.07. And one such ground is where the judgment is void – which at least arguably obtains if it were obtained on an unconstitutional premise. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 95, 368 N.W.2d 648 (1985) (judgments entered contrary to due process are void). Now it may well be that a court could construe § 806.07 to hold finality as a trump card; or that Bush’s particular arguments don’t come within that statute. Such a construction, though, would require attention to the text and history of that particular statute, an exercise this court assiduously avoids.

Nor is that all. The court’s introduction of finality into this context is a bit mechanical, not to say dogmatic. The “science” underlying SVP commitments is constantly evolving (to put it euphemistically). See, e.g., State v. Henry Pocan, 2003 WI App 233 ¶11 (at release hearing, “The psychologist stated that, based on new diagnostic tools, she could not conclude that Pocan would reoffend sexually”). The “tools” are subject to change and when they do, the very basis for the underlying commitment changes, which makes the commitment something of a moving target, not static like a conviction. It might be argued, of course, that this is what release hearings are for, but that misses the point: ch. 980 is unique, not analogous either to criminal convictions or revocations; simply asserting “finality” without analysis is – especially considering that the stakes include life-long commitment – much too facile. It’s hard to believe that some agenda doesn’t inform the result. The recurring problems of placing released “patients” in the community are well-known (see James Allen’s case, above, and this has led to increased concern that if placement can’t be foState v. Shawn D. Schulpius, 2004 WI App 39, PFR granted. Is it possible that the court means to impede such attacks on arbitrary procedural grounds?

And, finally, some procedural ambiguity which the court doesn’t flesh out. Bush, as the court notes, had his commitment overturned on direct appeal. After retrial and re-commitment he appealed again and won again. Although the second appeal resulted in a very narrow remedy (retrial limited to whether Bush was within 90 says of release when commitment petition filed), the fact is that the court of appeals did vacate the judgment in the process of remanding. Bush lost yet again on remand, but this apparently occurred while the release petition was being tried. (The court of appeals is silent on the timing; CCAP says that Bush lost the remand hearing at a pretrial conference on 3/24/03 and that the jury trial on release started the next day.) What this means is that in a real sense Bush was still in direct-appeal mode relative to his original commitment, at the time he launched this attack. And, of course, if that’s so, then the serial litigation bar – designed to inhibit collateral attack – is at least arguably misplaced.

Serial Litigation Bar -- § 974.06
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether defendant is entitled to have reviewed on the merits issues that either were, or could have been, raised on prior appeals.
Holding:
¶13. On appeal, Casteel raises three arguments, two of which we previously have addressed. He provides no reasoning why he could not have raised these arguments in his direct appeal or first Wis. Stat. § 974.06 motion, as required by § 974.06(4). While persons have a constitutional right to access to the courts, that right is neither absolute nor unconditional. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 785, 565 N.W.2d 586 (Ct. App. 1997) (citing In re Green, 669 F.2d 779, 785 (D.C. Cir. 1981)). Section 974.06(4) forecloses review of his arguments. See Escalona-Naranjo, 185 Wis. 2d at 181-82.
Serial Litigation Bar -- Motion to Modify Sentence
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether Casteel's failure to argue in prior appeals that the special action release program, § 304.02, is a new factor justifying sentence modification bars such an argument now.
Holding:
¶17. We note that the special action parole release statute was first adopted in 1989. See 1989 Wis. Act 31. In 1993, Casteel argued that a new factor justified resentencing, but did not raise the current issue. See Casteel, Nos. 93-1306-CR and 93-1307-CR. In the additional six appeals since 1989, Casteel failed to raise this issue. He has not provided any reason that prevented him from arguing it previously. His appeal on this issue is untimely. See Escalona-Naranjo, 185 Wis. 2d at 181-82.

(Note: This reasoning is dubious. Escalona merely interprets § 974.06 -- the statutory authority for collateral attacks on convictions; the limits it imposes on serial litigation are those it discerned in the statute. Sentence modification, on the other hand, is an exercise of inherent, common law authority, and importing purely statutory restrictions into this exercise is simply arbitrary.)
Standing Objection Insufficient to Preserve "Haseltine" Error
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz's testimony. This area of the law -- what a therapist can and cannot testify to -- is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims, and to the consistency of those characteristics with the victims in the case at trial, and when the expert presents extensive testimony on those and related subjects, a standing objection is insufficient to preserve challenges to Haseltine violations.
(Note: State v. Tutlewski, 231 Wis. 2d 379, 384-85, 605 N.W.2d 561 (Ct. App. 1999), distinguished, ¶13 n. 3: "Tutlewski, however, does not control here, as the defendant's claim in Tutlewski was based on the same objection made on appeal as was made in the trial court. Id. Delgado focuses his appeal argument on limited portions of Ortiz's testimony that he claims violate Haseltine. However, at trial, he argued that Ortiz's testimony should be excluded in toto because it would not assist the jury.")
Go to Brief
Respondent’s Waiver
State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶12      Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt, 128 Wis. 2d 110, 124-26, 382 N.W.2d 679 (Ct. App. 1985). If, however, actions by the State prevented fact finding on an issue that could have been resolved, then waiver may be applied. See State v. Nichelson, 220 Wis. 2d 214, 230, 582 N.W.2d 460 (Ct. App. 1998). Here, the State did nothing to prevent necessary fact finding; on the contrary, the State initiated the process from which the trial court made the pretrial findings of witness intimidation that supported the order terminating Rodriguez’s access to telephone, mail and visitors in order to prevent further intimidation.
State's Waiver - Escalona-Naranjo Argument
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:
¶25   We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. See Ford Motor Co. v. Lyons, 137 Wis.  2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987). Miller’s case differs from Crockett, wherein the defendant failed to raise his claim in three prior postconviction motions, and did not assert a sufficient reason for failing to raise his claim in his direct appeal or the prior postconviction proceedings. Crockett, 248 Wis.  2d 120, ¶10. The present case is more akin to State v. Avery, 213 Wis.  2d 228, 247-48, 570 N.W.2d 573 (Ct. App. 1997), in which we concluded that the State had waived its right to assert the procedural bar of Escalona. Like Miller, Avery had made no prior § 974.06 motions. Moreover, as in Miller’s case, the circumstances weighed heavily in favor of reaching the merits. Avery’s motion alleged a miscarriage of justice based on the late discovery that the sheriff’s department had withheld evidence. Here, Miller’s motion asserts claims that he was unable to raise in his direct appeal, as explained below, and alleges that the State failed to meet its burden of proof on his conviction for first-degree reckless injury. For the foregoing reasons, we therefore conclude that the State has waived its argument that Miller’s claims are procedurally barred by Escalona. [9]
The court further indicates, fn. 9, that the indistinguishable State v. Robinson, 177 Wis.  2d 46, 53, 501 N.W.2d 831 (Ct. App. 1993) (serial-litigation bar inapplicable where trial counsel was also direct-appeal counsel) would nullify Escalona here anyway. Note, as well, the court’s instruction, ¶22 fn. 10, citing State v. Ndina, 2009 WI 21, ¶¶29-30, that “forfeiture” is the correct nomenclature; “waiver” used merely because the parties use the term.
State's Waiver
State v. Danny G. Harrell, 2008 WI App 37
For Harrell: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶12      We begin by addressing the State’s waiver argument. When Harrell moved for an order staying this appeal until Mark was decided by the supreme court, he asserted in his motion that this issue presented the same issue as Mark—whether his right to remain silent under the Fifth Amendment was violated by admission into evidence of the statement he gave his probation agent. We granted the motion, and there was no objection from the State. When Harrell moved for a remand to the circuit court after the supreme court’s Mark decision was issued, the State did not assert waiver in its response. It did not object to a remand to determine whether Harrell’s statement was compelled, and, if it was, whether the error was harmless; but it did object to Harrell’s request that we vacate the commitment order before remanding. Based on the State’s response, we remanded but did not order a vacation of the commitment. The time for the State to raise waiver of the Fifth Amendment issue was prior to the remand order, and the State had ample opportunity to do so. At this point in the proceedings we decline to apply waiver to the Fifth Amendment issue. [8]
State's Waiver
State v. Jonathan W. Nawrocki, 2008 WI App 23
For Nawrocki: Scott D. Obernberger
Issue/Holding: ¶2 n. 3:
The State suggests that this case also raises the issue of whether Dubose applies retroactively, and requests, in a footnote to its brief, the opportunity to file a supplement brief addressing this issue “[i]f the court concludes that it must address the retroactivity of Dubose in order to decide the appeal.” We conclude that this issue has been waived—twice, in fact, if such a thing were possible. As Nawrocki correctly notes, the prosecutor did not object when the circuit court declared, “you have to understand I have to impose the law as it is now post- Dubose,” effectively waiving an argument against retroactive application of Dubose. Regardless, the State again passes on this issue on appeal by declining to develop the argument against retroactive application. To avoid waiving an argument on appeal, parties should develop in the principal brief all arguments that they reasonably believe may be relevant to the outcome of the case.
State's Waiver -- Alleged Failure of Defendant to Make Prima Facie Showing Under Bangert for Plea-Withdrawal
State v. Gerald J. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 577 (1997)
For Van Camp: Robert R. Henak
Issue/Holding:
¶25. After reviewing the record, we believe the State waived the issue of whether defendant sufficiently alleged that he in fact did not know or understand the information which should have been provided at the plea hearing. Although it appears that the defendant never expressly alleged that he did not know or understand this information, the State conceded during the postconviction hearing that the defendant had made a prima facie showing under Bangert and that the burden had shifted to the State to show that the defendant had entered his plea knowingly, voluntarily, and intelligently. The State failed to challenge the sufficiency of defendant's allegations before the trial court or in the briefs submitted to the court of appeals.

¶26. This contention, advanced for the first time in briefs before this court, was waived by the State, and we decline to consider it. As a general rule, this court will not address issues for the first time on appeal. See Perkins v. Peacock, 263 Wis. 644, 650, 58 N.W.2d 536 (1953); see also State v. Brown, 96 Wis. 2d 258, 291 N.W.2d 538, 541 (1980). The reason for this general rule is to give trial courts the opportunity to correct errors, thus avoiding appeals. See Herkert v. Stauber, 106 Wis. 2d 545, 560, 317 N.W.2d 834 (1982). Had the State raised this issue below, the defendant would have had an opportunity to cure, and the trial court would have had the opportunity to consider, this claimed defect. We are unpersuaded that justice would be served here by entertaining the State's arguments where the trial court was not afforded an opportunity to do so. See Wirth v. Ehly, 93 Wis. 2d 433, 443-4, 287 N.W.2d 140, 145-46 (1980); Binder v. Madison, 72 Wis. 2d 613, 618, 241 N.W.2d 613 (1976).

Distinguished, State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998) (state's waiver doesn't apply where defendant's action supported judicial estoppel: "There was nothing Darcy K. could have done during the postconviciton proceedings to alter the fact" that he had been the beneficiary of the ruling he himself had sought but now sought to challenge).
State's Waiver -- § 974.06 Serial Litigation Bar
State v. Andre D. Crockett, 2001 WI App 235, PFR filed
For Crockett: David D. Cook
Issue: Whether the state's failure to assert a waiver bar in the trial court precludes it from arguing waiver on appeal, where the waiver question relates to the serial litigation bar in § 974.06.
Holding:
¶9. Although there may be situations such as [State v. Avery, 213 Wis. 2d 228, 570 N.W.2d 573 (Ct. App. 1997)] in which it is appropriate not to apply the waiver doctrine to a defendant when the State failed to assert it in the trial court, deciding not to apply it as a general rule would contradict the purposes of Wis. Stat. § 974.06 and Escalona-Naranjo. The supreme court stated that the primary purpose of the requirement that defendants consolidate all their postconviction claims in the first motion or appeal was to provide finality to criminal litigation. Escalona-Naranjo, 185 Wis. 2d at 178, 185. This purpose does not change in importance depending on whether the State makes a waiver argument in the trial court. Either way, the purpose is frustrated if defendants without a sufficient reason are allowed to raise claims that could have been asserted before. It makes little sense to make the application of the requirements of § 974.06 contingent on the State's litigation strategy when it is defendants, not the State, to which the requirements are directed. Furthermore, as we noted in State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 343, 576 N.W.2d 84 (Ct. App. 1998), the policy against successive petitions is primarily concerned with wasting judicial resources. These resources will be wasted when successive motions are allowed regardless whether or not the State chooses to press the waiver issue.

¶10. Crockett has presented no reason why we should exercise our discretion and address his claim on the merits even though he could have raised it earlier. Unlike the defendant in Avery, Crockett has filed three previous motions requesting postconviction relief, the earliest dating back to 1994, and he could have asserted a due process claim in any of them. At some point, litigation must end. Furthermore, the claim that Avery failed to raise on appeal was based on the sheriff's department's hiding of evidence implicating another suspect, thus suggesting his possible innocence. Avery, 213 Wis. 2d at 246. There is no such evidence of a possible miscarriage of justice here. Therefore, we conclude that Escalona-Naranjo bars Crockett from asserting yet another constitutional claim.

State's Waiver -- Strategic Failure to Object
State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer
Issue/Holding:
We conclude that the State waived the right to claim this remedy because it acquiesced with the trial court's quashing of the subpoenas and made no efforts to introduce the testimony of Nichelson's trial attorneys. The record reflects that the State strategically decided to allow the court to proceed without this evidence because it considered the ruling more harmful to Nichelson's ineffective assistance of counsel argument than to its own argument that Nichelson's plea was voluntarily and knowingly entered. Now that the State realizes it made a mistake, it is requesting this court to give it another opportunity to meet its burden. We do not believe the interests of justice requires us to give the State this second chance.

...

This court is reluctant to apply Holt where actions by the State prevented a complete fact-finding on an issue that could have been resolved at the trial court. For example, in Milashoski, the State asserted for the first time on appeal that the defendant lacked standing to challenge the seizure of physical evidence. Because its earlier decision prevented the development of a full factual basis for review, the court concluded that the State waived the issue. Id. at 109, 464 N.W.2d at 25. "To relax the waiver rule in favor of the state makes no sense and does not serve either the efficient administration of judicial business or the interests of justice." Id. We also conclude that Holt does not prevent our application of the waiver rule, and hold that the efficiency and justice concerns require us to apply it. We therefore remand the case to the trial court with the direction to grant Nichelson's motion to withdraw his plea.

Sufficiency of Evidence -- Trial-Level Challenge Unnecessary
State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm:
Issue: Whether challenge to sufficiency of evidence must be raised during trial in order to preserve the right to raise the challenge on appeal.
Holding: State v. Gomez, 179 Wis. 2d 400, 507 N.W.2d 378 (Ct. App. 1993), essentially re-affirmed:
¶54. On the basis of an analysis of the policies, purposes, and consequences of alternative interpretations proposed by the parties in the case at bar, we conclude that the following interpretation best gives Wis. Stat. § 974.02(2) its intended legislative effect: A challenge to the sufficiency of evidence is different from other types of challenge not previously raised during trial. This difference justifies allowing a challenge to the sufficiency of the evidence to be raised on appeal as a matter of right despite the fact that the challenge was not raised in the circuit court. This interpretation comports with the text, context, history, and purposes of the statute, including the consequences of alternative interpretations.
A bit of nose-counting is required. See ¶4. The lead opinion, from which the quoted paragraph is culled, gets 3 votes (CJ Abrahamson, and JJ Bradley and Crooks). A 4th, majority-creating vote comes from Justice Prosser, albeit “reluctantly” so, ¶71 n. 36. Reluctant, indeed:
¶89. Although Gomez appears to be questionable, I think the better course for now is to stick with its perceived interpretation of the statute, as a matter of policy, with the hope that the statute will be clarified by the legislature or by this court through judicial rule-making. Creating clear rules governing when and how a defendant should challenge the sufficiency of the evidence in the trial court ought to be a high priority, because the result of the majority opinion is that the state can and will be sandbagged by defendants who remain silent until it is too late for the court to react. I cannot join the majority opinion because it has the effect of turning "quicksand" into solid rock. It is now urgent for courts and prosecutors to develop techniques to force a defendant's hand, so that a defendant cannot euchre the court into making an avoidable and irrevocable error.
“Euchre”? Not, one would think, a reference to a certain Hall of Fame announcer but, rather, intended in its colloquial sense, which is to cheat or more charitably, to outwit. If there really is an urgent need to protect vulnerable prosecutors from being dry-gulched by wily defense attorneys no empirical support is forthcoming. How likely is that a trial attorney will intentionally fail to move to dismiss in order to gull the prosecution into failing its burden of proof – in the expectation that relief would follow from on high months or years later? Nor is it as if the appellate courts are flooded with sufficiency challenges, let alone any occasioned by sandbagging attorneys. “I think the better course for now …”: this might suggest a tenuous majority, but we’re not quite done with the vote-counting. Although Justice Roggensack disagrees with the majority’s construction of § 974.02, she nonetheless does not support a waiver rule, essentially on policy grounds (waiver would undermine the State’s burden of proof), ¶¶118-19. In sum, then, there’s a somewhat shaky 4-3 majority construction of § 974.02, but a more solid 5-2 majority opposed to waiver. On the larger question, then, the center holds, at least for now. A statutory change, of course, would be something else.
Suppression of Evidence -- Sufficiency of objection to preserve argument
State v. Lucian Agnello, 226 Wis.2d 164, 593 N.W.2d 427 (1999), reversing unpublished decision
For Agnello: Jerome F. Buting & Pamela Moorshead, Buting & Williams
Issue/Holding: On a motion to suppress statement, counsel's bare relevancy objection to an inquiry into the statement's truthfulness is held sufficient to preserve a Rogers v. Richmond/Jackson v. Denno objection. This holding is summed up by the following passages:
¶12 There is no question that Agnello's objection was not as specific as it could have been. The addition of a short phrase, such as "the truthfulness of a confession has no bearing on voluntariness," would have gone a long way to eliminate any confusion over the nature of the objection. However, we have never required an objection to be as specific as possible to be effective. All that we have required of a party is to object in such a way that the objection's words or context alert the court of its basis. Corey J.G., 215 Wis. 2d at 405. In this instance, the context of the objection and the status of the law in this area gravitate toward a conclusion that Agnello has preserved this issue for appeal....

¶15 While judges are by no means expected to have at the fore of their minds the dispositive principles of every legal issue, the parties can reasonably expect the judge to appreciate those issues that are commonplace without substantial assistance by the litigants. Heims v. Hanke, 5 Wis. 2d 465, 471, 93 N.W.2d 455 (1958), overruled on other grounds, Butzow v. Wausau Memorial Hospital, 51 Wis. 2d 281, 187 N.W.2d 349 (1971); see also Champlain v. State, 53 Wis. 2d 751, 758-59, 193 N.W.2d 868 (1972). That expectation reasonably increases when, as is the case with Goodchild hearings, the inquiry is limited in scope and the possible issues are finite in number.

Waiver: Jury Instruction – Failure to Object to Trial Court Response to Jury Question
State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury's question, notwithstanding conceded unanimity problems in the response:
¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did. At the time the trial court announced its intention to provide the challenged answer to the jury’s question, Becker’s trial counsel did not object to it. Indeed, he appears to have expressly “okayed” it …

¶17   Here, the answer the trial court gave to the jury’s question regarding its instruction became part of its instruction to the jury. Thus, as in Marcum, this appeal rests on claimed errors in the jury instructions. See Marcum, 166 Wis. 2d at 915. And, like Marcum, Becker has a timing issue with his objection. Because Becker’s objection came too late; we will not review the instruction to the jury “in the context of whether the trial court erred.” See id. at 916.

The objection is reviewable under an ineffective-assistance claim, ¶18. Obvious, perhaps, but worth noting nonetheless: an answer to a jury question becomes "part of" the jury instructions.
Waiver: Jury Instruction – Failure to Object to Limiting Instruction
State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.
Issue/Holding: Failure to object to the wording of a limiting instruction (limiting jury’s use of certain evidence to impeachment rather than substantive evidence of guilt) waived the right to challenge its efficacy, ¶¶34-36.
The court possesses discretionary authority to review and reverse in the interest of justice but “Cockrell does not contend that the real controversy was not tried because of the challenged jury instruction,” ¶36 n. 12. That’s right, under the facts, but you wouldn’t want to overly generalize the result. A limiting instruction is available as a matter of right, § 901.07, which in this context would be something like: “You’ve heard evidence that in the face of a direct accusation of guilt the defendant lawyered up. You may not consider this assertion of right to counsel as evidence of guilt but instead you may consider it only as relevant to whether he’s a lying sack.” Indeed, the prosecutor, alert to the possibilities, requested that the jury’s use be “limited” to the following: “You may, as with any witness … consider evidence of his prior statements in assessing his credibility.” The trial judge refused that request and gave the defense something of a windfall: “… You must not consider that decision by Mr. Cockrell to seek the assistance of counsel [when questioned by the detective] to in any sense be evidence of guilt as to any charge.” (¶¶34-35) The argument on appeal that this instruction “erroneously failed to inform the jury that the State’s questioning regarding that silence could be considered solely with respect to impeaching his credibility” might be a bit too literal-minded. 

The reality-based community of practitioners is likely to see in this context a “limiting” instruction as dicey at best, only drawing juror attention to an area best avoided. And granted moreover that this particular instruction was adequate to the assigned task: What about when there’s been no limiting instruction, due to oversight rather than strategy? Well, then you might be able to play on the sensibilities of appellate judges, who after all tend to view this sort of thing from the perspective of Mount Olympus. Just how is a jury supposed to know about the limited, non-substantive use of such very damning evidence? Consider, first of all, the fundamental principle that as a matter of fundamental due process a case may not be tried on one theory only to be affirmed on appeal by a distinct theory, e.g., Cole v. Arkansas, 333 U.S. 196 (1948). If the jury had no reason to suspect that the evidence came in for a limited, non-substantive purpose but indeed used it as direct evidence of guilt, then affirming on the theory that the evidence was used “only” on credibility might well violate due process. “A trial becomes unfair if testimony thus accepted may be used in an appellate court as though admitted for a different purpose, unavowed and unsuspected. People v. Zackowitz, 254 N.Y. 192, 200, 172 N.E. 466. Such at all events is the result when the purpose in reserve is so obscure and artificial that it would be unlikely to occur to the minds of uninstructed jurors, and even if it did, would be swallowed up and lost in the one that was disclosed.” Shepard v. United States, 290 U.S. 96, 103 (1933). Take into account that Shepard dealt with distinct and relatively extreme facts, but its underlying idea might well have some broader traction, at least in the right case.

There might also, again under the right set of facts, be a related but still somewhat obscure “law of the case” argument—which says that (within limits) you have to gauge the evidence by the unobjected-to instructions, see, e.g., United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999) (“‘When a cause is submitted to the jury under an instruction, not patently incorrect or internally inconsistent, to which no timely objection has been lodged, the instruction becomes the law of the case.’ United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992)”). In other words, “law of the case” might preclude an appellate court from saying that, despite absence of a limiting instruction, the evidence indeed was given limited effect.

Unobjected-to jury instruction
State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller
Issue/Holding: ¶8 n. 2:
We observe that Draughon did not object to the jury instruction when provided the opportunity by the circuit court. Draughon nonetheless raises his objection here under color of his ineffective assistance of counsel claim as well as his claim that the real controversy was not fully tried. Our review of a waived objection to a jury instruction is limited. See Steinberg v. Jensen, 204 Wis. 2d 115, 122 n.4, 553 N.W.2d 820 (Ct. App. 1996).  It is within our statutory discretion to review an allegedly deficient jury instruction when we are exercising our power to reverse the judgment under Wis. Stat. § 752.35.  Steinberg, 204 Wis. 2d at 122 n.4. Section 752.35 states in relevant part:
In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment … regardless of whether the proper motion or objection appears in the record.
Also, a waived objection to a jury instruction can be “raised by way of an ineffective assistance of counsel claim.” See State v. Hayes, 2004 WI 80, ¶114, 273 Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring). We therefore reach the merits of Draughon’s arguments.
Unobjected-to jury instruction
State v. Suzette M. Ward, 228 Wis.2d 301, 596 N.W.2d 887 (Ct. App. 1999).
For Ward: Patricia L. Arreazola.
Issue/Holding: Court of appeals lacks power to review jury instruction, in absence of objection; motion to dismiss, made prior to instruction conference, doesn't preserve instructional error. Court, however, possesses limited power of reversal under § 752.35 interest of justice analysis.
Wallerman Stipulation
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether defendant waived review of objection to admissibility of misconduct evidence by entering into a "Wallerman" stipulation.
Holding: A stipulation under State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (an element is conceded and the other-act isn't admitted) waives the issue of admissibility:
¶5. We conclude that the trial court's ruling, that other acts evidence would be admissible, did not require Frank to enter into the Wallerman stipulation. However, by entering into the stipulation and rendering the other acts evidence inadmissible, Frank waived his right to appeal the other acts ruling. We conclude that other acts evidence must be introduced at trial before a criminal defendant can argue reversible error. In any event, we agree with the State that Frank did not give up a defense by entering into the Wallerman stipulation. ...

¶9. Generally, when a trial court rules that certain evidence is admissible, the admission cannot be deemed prejudicial error unless the evidence actually is admitted against the party objecting to it. ....

¶14. .... Frank had a choice. He could have declined to enter into a Wallerman stipulation, thereby allowing the State to introduce the other acts evidence against him and preserving the issue of the admissibility for appellate review. Or, he could have entered into a Wallerman stipulation, thereby precluding the admission of the evidence and forfeiting his right to appellate review of the admissibility of the evidence. ...


Precedential Impact of Contradictory Pronouncements in Appellate Decision
State v. Colleen E. Hansen, 2001 WI 53, 243 Wis. 2d 328, 627 N.W.2d 195, on certification
For Hansen: Pamela Pepper
Issue: Whether a prior decisional pronouncement should be treated as precedential when it is contradicted elsewhere in the decision.
Holding: "Because of the internal inconsistency [in the prior decision], no judicial precedent was established in the first place." ¶33.
Waiver -- Non-absolute Nature
State v. David C. Polashek, 2001 WI App 130, PFR granted 9/24/01
For Polashek: Nila J. Robinson
Issue:Whether failure to raise an issue in the trial court waived the issue on (interlocutory) appeal.
Holding:
¶28. The oft-repeated rule of Wisconsin appellate practice is that issues not raised in the circuit court generally will not be considered for the first time on appeal. See Apex Elec. Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998). This rule does not relate to the court's jurisdiction and is not absolute. When an issue involves a question of law rather than of fact, has been briefed by both parties and is of sufficient public interest to merit a decision, this court may exercise its discretion to address the issue. Id.

¶29. This is such a case. The parties have briefed the issue whether Wis. Stat. § 48.981(7) is a strict liability statute, and the issue presents a question of law. Moreover, this statute has not been previously interpreted. We conclude that this issue is of sufficient public interest to merit a decision, and that our decision will assist the courts and others in applying the statute. See Apex, 217 Wis. 2d at 384. It is also compelling that our decision will be applicable to the case before us, as we are remanding for a jury trial and the court will have the opportunity to craft new jury instructions consistent with this opinion.


STANDARD OF REVIEW

Standard of Review -- In General

The one indispensable text for the Wisconsin appellate practitioner is Michael S. Heffernan, "Appellate Practice and Procedure in Wisconsin," which can be ordered from the State Bar in dead-tree or on-line versions. This treatise includes, as its Appendix C, a comprehensive outline by Judge Richard S. Brown covering about every possible standard of appellate review you'll ever encounter.


Standard of Review -- Generally
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court:
¶19      … (T)his court is in just as good a position as the circuit court to answer that question. See State v. Pepin, 110 Wis. 2d 431, 435-36, 328 N.W.2d 898 (Ct. App. 1982) (appellate review generally justified where trial court has no advantage in addressing the question); Ronald R. Hofer, Standards of Review—Looking Beyond the Labels, 74 Marq. L. Rev. 231, 237-39 (1991) (“labels of ‘fact’ and ‘law’” are little more than measures of deference to trial court; deference unnecessary where trial court not in a “better position” to decide the question); Estate of Schultz v. Schultz, 194 Wis. 2d 799, 807-08, 535 N.W.2d 116 (Ct. App. 1995) (citing Pepin and Hofer).
This discussion is in reference to the implications of note; though the court doesn’t put it in these terms, this is probably an exemplar of the idea that purely documentary evidence is reviewed on appeal non-deferentially.
Generally
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶7. … The three standards of appellate review of circuit court decisions have been stated numerous times, although case law has articulated sub-principles and different ways of stating the standards of review: (1) A reviewing court will not overturn findings of fact unless clearly erroneous. (2) A reviewing court will sustain a discretionary decision that is the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination. (3) A reviewing court will decide questions of law independently of the circuit court but benefiting from its analysis.
Discretion, Generally
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals
For Evans: Robert R. Henak
Issue/Holding:
¶19. We review the court of appeals' decision to grant or deny a § (Rule) 809.82(2) motion to extend time under an erroneous exercise of discretion standard. State ex rel. Breier v. Milwaukee County Cir. Ct., 91 Wis. 2d 833, 835-36, 284 N.W.2d 102 (1979). See also State v. Argiz, 101 Wis. 2d 546, 561, 305 N.W.2d 124 (1981)(concluding that the court of appeals did not abuse its discretion in refusing to allow late appeal). "[T]he exercise of discretion is not the equivalent of unfettered decision-making." Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981). To be upheld on appeal, a discretionary act "must demonstrably be made and based upon the facts appearing in the record and in reliance on the appropriate and applicable law." Id. Moreover, "a discretionary determination must be the product of a rational mental process by which the facts of record and law relied upon are stated and are considered together for the purpose of achieving a reasoned and reasonable determination." Id.

¶20. Therefore, a court erroneously exercises its discretion when it fails to set forth its reasoning and the facts of record do not support its decision. McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971). Further, a court erroneously exercises its discretion when it proceeds under a mistaken view of the law. Cook v. Cook, 208 Wis. 2d 166, 171-72, 560 N.W.2d 246 (1997). This court has held that it is an erroneous exercise of discretion for the court of appeals to utilize § (Rule) 809.82(2) to shortcut procedures established for granting writs when there is no apparent reason for doing so. Breier, 91 Wis. 2d at 835-36. Conversely, the court of appeals does not erroneously exercise its discretion by refusing to allow a defendant to pursue a late appeal when the defendant fails to establish any exceptional circumstances that would warrant such action. Argiz, 101 Wis. 2d at 561.

Discretion -- Generally -- Based on Mistaken View of Law
State v. Cesar G., 2004 WI 61, reversing unpublished opinion
For Cesar G.: Eileen Hirsch, SPD, Madison Appellate
Issue/Holding:
¶46. In contrast to the court of appeals, we view the circuit court's statement that it was not convinced it had the statutory authority to stay the sex registration requirement as persuasive that it made its decision based on an incorrect view of the law. As such, the circuit court's decision denying Cesar's motion to stay the registration requirement constitutes an erroneous exercise of discretion. The court of appeals decision must therefore be reversed and the cause remanded to the circuit court for exercise of its discretion.
Discretion -- Generally
Calumet County DHS v. Randall H., 2002 WI 126, on certification
Issue/Holding: Where "the procedural history" and "the underlying facts" are not in dispute, "a determination of whether the facts meet the applicable legal standard" is reviewed de novo. ¶18.

Standard of Review -- Administrative Decision / Rule

Administrative Body – Construction of Constitutional Provision
Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86
Issue/Holding:
¶14      By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court. [9] In any event, it is the court's responsibility to decide questions of law and determine whether deference is due and what level of deference is due to an agency interpretation and application of a statute. The court determines the appropriate level of deference by comparing the institutional qualifications and capabilities of the court and the agency by considering, for example, whether the legislature has charged the agency with administration of the statute, whether the agency has expertise, whether the agency interpretation is one of long standing, and whether the agency interpretation will provide uniformity and consistency.

¶15      Furthermore, giving deference to the agency interpretation does not mean that the court accepts the agency interpretation without a critical eye. The court itself must always interpret the statute to determine the reasonableness of the agency interpretation. Only reasonable agency interpretations are given any deference.

The court goes on to discuss at some length the three levels of deference of agency interpretations of statutes in adjudicative matters, ¶¶16-20. Additional discussion found in 3-Justice concurrence in separate case, Hilton v. DNR, 2006 WI 84, ¶¶47-69 which identifies and seemingly laments the trend in favor of judicial deference to administrative decisions.
Administrative Body – Construction of Constitutional Provision
Patrick G. Schilling v. State Crime Victims Rights Board, 2005 WI 17, on certification
Issue/Holding:
¶10. This is an appeal following a decision by the Board, which is an administrative agency. We review the Board's decision, not the circuit court's. …

...

¶12. … While the Board interpreted Article I, Section 9m of the Wisconsin Constitution pursuant to its duties conferred by Wis. Stat. § 950.09, it does not follow that we analyze the Board's decision in this case as we would an agency interpretation of a statute. Beecher, 273 Wis. 2d 136, ¶26. Instead, because construing the constitution is a task ultimately for the courts, we give no deference to the Board's interpretation of Article I, Section 9m of the Wisconsin Constitution. Knights of Columbus v. State, 151 Wis. 2d 404, 409, 444 N.W.2d 447 (Ct. App. 1989). Our review, therefore, is de novo.

Administrative Rule
WCCD v. DNR, 2004 WI 40, affirming 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858
Issue/Holding:
¶5. The central issue in this case is the validity of § NR 10.01(1)(h).5 A court may declare an administrative rule invalid "if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures." Wis. Stat. § 227.40(4)(a). WCCCD alleges that § NR 10.01(1)(h) exceeds the statutory authority of the DNR.
5  "Administrative rules enacted pursuant to statutory rulemaking authority have the force and effect of law in Wisconsin." Staples v. DHSS, 115 Wis. 2d 363, 367, 340 N.W.2d 194 (1983).
(The court goes on to say that the party challenging the validity of an administrative rule doesn’t bear any burden of showing that agency exceeded it authority in promulgating the rule; a question of law, subject to independent review, is presented. ¶10. Nor is the agency entitled to deference on the excess-authority issue. ¶¶11-13.)
Administrative Decision -- Certiorari: Dismissal of Petition on Procedural Grounds
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130
Issue/Holding:
 ¶7. Generally, on an appeal of the circuit court's order granting or denying relief in a certiorari action, we review the underlying decision of the administrative agency, not that of the circuit court. See State ex rel. Sprewell v. McCaughtry, 226 Wis. 2d 389, 393, 595 N.W.2d 39 (Ct. App. 1999). Here, however, the dispositive issues do not involve the correctness of the administrative proceedings and determination, but the interpretation of the rules of civil procedure and the application of the claim preclusion doctrine, issues that first arose in the circuit court. Accordingly, it is the decision of the circuit court to dismiss Barksdale's petition without reaching its merits that is before us. Whether the circuit court correctly interpreted the procedural statutes and applied the doctrine of claim preclusion are questions of law that we review de novo. See Truttschel v. Martin, 208 Wis. 2d 361, 364-65, 560 N.W.2d 315 (Ct. App. 1997) (statutory interpretation); Northern States Power Co., v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995) (claim preclusion).
Administrative Decision -- Certiorari: Motion to Quash
State ex rel. David C. Myers v. Swenson, 2004 WI App 224, PFR filed 11/24/04
For Myers: Christopher T. Sundberg; Bruce D. Huibregtse
Issue/Holding:
¶6. A motion to quash a writ of certiorari is akin to a motion to dismiss. Fee v. Board of Review, 2003 WI App 17, ¶7, 259 Wis. 2d 868, 657 N.W.2d 112. Both a motion to quash and a motion to dismiss test the legal sufficiency of the facts alleged in the complaint. We review such motions de novo. We also independently determine whether a court has competency to proceed and whether a statute is constitutional. State v. Pharm, 2000 WI App 167, ¶11, 238 Wis. 2d 97, 617 N.W.2d 163 (standard of review for competency); Maurin v. Hall, 2004 WI 100, ¶93, __ Wis. 2d __, 682 N.W.2d 866 (standard of review for constitutionality). We will uphold the constitutionality of a statute unless the party challenging it demonstrates its unconstitutionality beyond a reasonable doubt. Maurin, 682 N.W.2d 866, ¶93.
Administrative Decision -- Certiorari
State ex rel. Raymond Booker v. Schwarz, 2004 WI App 50
For Booker: John Pray, Legal Assistance Program, UW Law School
Issue/Holding:
¶10 We review the decision of the agency, not that of the circuit court. State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997), aff’d, 219 Wis. 2d 615, 579 N.W.2d 698 (1998). Our review is limited to determining whether: (1) the Division stayed within its jurisdiction; (2) it acted according to law; (3) its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) the evidence was such that it might reasonably make the decision that it did. State ex rel. Tate v. Schwarz, 2002 WI 127, ¶15, 257 Wis. 2d 40, 654 N.W.2d 438.

Administrative Decisions -- Certiorari Review -- Revocation -- Probation -- Right to Counsel
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project 
Issue/Holding: A new rule of equitable tolling for untimely certiorari petitions seeking review of revocation decisions is subject to the retroactivity analysis adopted by State ex. rel. Brown v. Bradley, 2003 WI 14, 259 Wis. 2d 630, 658 N.W.2d 427, which adopts “the three-pronged test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)”:
¶40. ...

(1) Does the rule 'establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed?'

(2) Will retroactive operation further or retard the operation of the rule in question?

(3) Will retroactive application produce substantial inequitable results?

...

¶44. In the end, we agree with the State that our tolling rule should not apply retroactively, but rather "be limited to cases for which certiorari review is still available, but also encompassing Griffin and Glenn." This limited application is consistent with our holdings in Schmelzer and Brown. Schmelzer, 201 Wis. 2d at 258-59; Brown, 259 Wis. 2d 630, ¶26. "Such an approach permits some pro se prisoners to benefit from the new rule without the accompanying difficult proof problems which frustrate the operation of the rule." Brown, 259 Wis. 2d 630, ¶26. Moreover, such a limited reapplication "recognizes the finality of case and the inequities that result from reopening cases thought to be long since closed." Id.

(A 3-justice concurrence would apply a different retroactivity analysis, namely Teague v. Lane, 489 U.S. 310 (1989), “in the context of a collateral attack by habeas petition of a judgment already final,” ¶64.)
Administrative Decision -- Certiorari Review -- Revocation of Parole -- Generally
DOC v. Schwartz and James Dowell, 2004 WI App 136, (AG’s) PFR granted 9/1/04
For Dowell: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶5 A challenge to a parole revocation determination is reviewed by certiorari. State ex rel. Macemon v. McReynolds, 208 Wis. 2d 594, 596, 561 N.W.2d 779 (Ct. App. 1997). The reviewing court is limited to determining: “(1) [w]hether the [parole] board kept within its jurisdiction; (2) whether [the parole board] acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.” State v. Goulette, 65 Wis. 2d 207, 215, 222 N.W.2d 622 (1974). Moreover, “we review the agency’s decision, not the [trial] court’s.” Kozich v. Employe Trust Funds Bd., 203 Wis. 2d 363, 368-69, 553 N.W.2d 830 (Ct. App. 1996).
Administrative Decision -- Certiorari
State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella
Issue/Holding:
¶13. Certiorari review for parole revocation is limited to four questions: "(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question." State ex rel. Thorson v. Schwarz, 2004 WI 96, ¶12, 274 Wis. 2d 1, 681 N.W.2d 941.

¶14. Here, Riesch's claim implicates the first two inquiries. He submits that the Division acted outside its jurisdiction and contrary to law in revoking his parole status because he was not on parole at the time of revocation. Resolution of these matters present questions of law subject to independent appellate review. See State ex rel. Curtis v. Litscher, 2002 WI App 172, ¶10, 256 Wis. 2d 787, 650 N.W.2d 43.

Administrative Decision -- Certiorari
State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
Issue/Holding:
¶15. Certiorari review of a probation revocation order by the Department of Administration, Division of Hearings and Appeals ("the Department"), "is limited to four inquiries: (1) whether the Department acted within the bounds of its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will, not its judgment; and (4) whether the evidence was sufficient that the Department might reasonably make the determination that it did." State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 628-29, 579 N.W.2d 698 (1998). See also Van Ermen v. Dep't of Health & Soc. Servs., 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).

¶16. This case requires an application of the second inquiry--whether the Department acted according to law--which is a question of law that we review de novo, without deference to the conclusions of the Department, the circuit court, or the court of appeals. See Warren, 219 Wis. 2d at 629.


Standard of Review -- Binding Authority

Binding Authority -- Published Wisconsin Court of Appeals Opinion – Review by Supreme Court
State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Review of a published court of appeals’ decision by the supreme court leaves intact any portion of the opinion not reversed, ¶13 n. 4, citing State v. Jones, 2002 WI App 196, ¶40.
Jones itself holds:
We agree with the State that this exact claim has already been rejected in State v. Dowe, 197 Wis. 2d 848, 852, 541 N.W.2d 218 (Ct. App. 1995), rev’d on other grounds, 207 Wis. 2d 129, 557 N.W.2d 812 (1997), and that we are bound by Dowe. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Although Dowe was reversed on other grounds, its double jeopardy holding remains good law. See State v. Byrge, 225 Wis. 2d 702, 717-18 n.7, 594 N.W.2d 388 (Ct. App. 1999) (“[H]oldings not specifically reversed on appeal retain precedential value.”).
Binding Authority -- Dicta, Generally
State v. Dwight M. Sanders, 2007 WI App 174, PFR filed 7/6/07
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:

¶26   The State argues that our supreme court’s decision in Hughes validates the officers’ hot pursuit entry in this case. In Hughes, the court held that the crime of possession of marijuana was serious enough to justify the warrantless entry of an apartment under the exigent circumstance of preventing the destruction of evidence. Hughes, 233 Wis. 2d 280, ¶¶22, 30. The court refused to look only to the punishment for first-offense possession of marijuana, a misdemeanor, to determine the seriousness of the crime at issue. Id., ¶¶30, 34. Instead, the court opted for a broader approach that also considered the facts of the case that supplied the police with the probable cause to believe that the evidence of illegal drugs would be found within the apartment and the entire penalty structure for drug offenses. Id., ¶¶34-35.

The concurrence has some words on the subject, worth repeating:

¶40   One more thing. I wholeheartedly agree with the majority opinion’s rejection of the State’s argument that we need not follow Mikkelson because it is dicta. The State seems to think that if a narrower holding in the decision can be found, anything else written by the court on another ground is dicta. That is nonsense. First, courts can and often do give alternative reasons for their decisions. Alternative rationales are not dicta. Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”). Second, courts do not write just to pass the time away. We write because we have something that needs to be said. When we intentionally take something up, research it and provide a reasoned explication of what we want to say, it is for transparency purposes: it shows the public the factors that played an important part in the decision. It also shows the results of the collegial give-and-take that occurred during the decision process. And it shows that the court means to mark the law on a subject. Third, the old-world view that a dictum is a statement in an opinion not necessary to the decision of the case is, at its core, absurd. Taken to its logical end, the only statement in an appellate opinion strictly necessary to the decision is the order of the court. As one commentator has noted, a “quibble like this shows how useless the definition is.” Dictum Revisited, 4 Stan. L. Rev. 509, 509 (1952).

¶41   The term “dicta,” in my view, is often too broadly defined, usually by a lawyer who is searching for a way not to be bound by a prior published decision. But the term should be limited to those situations where a court notes, in passing, that a certain issue is lurking in the background, gives its off-the-cuff opinion without analysis and leaves it at that. That is what dicta is. Even though I disagree with Mikkelson, its discussion of Welsh was certainly not dicta. The panel zeroed in on Welsh, interpreted it and set a bright line rule. If the State disagrees with Mikkelson, and it obviously does, its recourse is to petition for review and ask the supreme court to overrule Mikkelson. But it should not try to pass it off as dicta.

Binding Authority -- Dicta
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding:
¶18      However, our rejection of the Committee’s definition of cunnilingus does not fully resolve this issue since, as we have observed, this definition met with at least tacit approval by the Childs court. However, we are not bound by the Childs case because it was not a cunnilingus case ….

¶19      The court of appeals’ reference to cunnilingus in Childs occurred only because that term and its definition were part of the larger instruction that also addressed fellatio, which was the conduct at issue in the case. Thus, the court’s reference to cunnilingus was factually irrelevant to the issue and unnecessary to the analysis and holding of the case. As such, the reference was dicta and we are not bound by such commentary.  See State v. Sartin, 200 Wis.  2d 47, 60 n.7, 546 N.W.2d 449 (1996) (stating that language expressed in a court’s opinion which extends beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it is dicta).

Remember this result the next time a court throws at you sweeping language indicating that the court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40; American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 (“This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so.”), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). Can’t, that is, withdraw language; but is nonetheless not compelled to follow that language if it’s mere dicta, as this result clearly shows.
Binding Authority -- Dicta, Conflicting With Supreme Court Precedent, Withdrawal by Court of Appeals
State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski
Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.
Just to be perfectly clear: the court of appeals does not have authority to overrule its own precedent, State v. Andre Bolden, 2003 WI App 155, ¶¶9-10. Indeed, sweeping language in supreme court cases indicates that the court of appeals lacks power to withdraw any language, including mere dicta, from its own published decisions. E.g., State v. William L. Morford, 2004 WI 5, ¶40, nn. 39-40, citing, Cook v. Cook, 208 Wis.  2d 166, 189, 560 N.W.2d 246, 256 (1997). See also American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 ("This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so."), reversed on other grds., 2004 WI 2; and State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (same). Presumably, then, if that’s all that was up for discussion in Harden’s case—mere dicta in a prior published case—then the court of appeals presumably couldn’t withdraw the language. (Though it must also be said that mere dicta isn’t binding anyway; you don’t have to follow it, so there’s no real need to withdraw it.) But there is here an overarching principle at work: the court of appeals is bound by supreme court precedent, to which it must give way. E.g., State v. Walter Leutenegger, 2004 WI App 127, ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995): “[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court.” And that is what the court of appeals in effect did in Harden’s instance, follow a (binding) supreme court pronouncement on an issue. The court of appeals also stresses that its prior, now-withdrawn pronouncement was dicta, ¶6 (as indeed it was, simply because it was language wholly unnecessary to the holding; see, e.g., Morford, ¶33 n. 4, for general definition of dicta). Why give so much attention to this? Because the result in this case—though no doubt correct—doesn’t explicitly address the somewhat obscure but nonetheless recurrent problem of just when the court of appeals has authority to withdraw its own published language, dicta or not. The result does show that, sweeping language in prior cases aside, the inhibition on this authority is not absolute. But that authority is obviously quite limited. It’s highly unlikely that the court of appeals can withdraw its own published dicta simply because it is dicta; to that extent, the court’s stress in this instance may be somewhat misleading. It isn’t so much that the prior pronouncement was “dicta” but, rather, that it is a dead letter in light of supreme court precedent with which it conflicts.
(Concurrence) – Binding Authority – Conflicting Court of Appeals’ Precedent: Earlier Decision Controls
State v. Esteban Martinez, 2007 WI App 225
For Martinez: George Limbeck
Issue/Holding (Concurrence): “Where two court of appeals decisions conflict, the first decision governs. State v. Swiams, 2004 WI App 217, ¶23, 277 Wis. 2d 400, 690 N.W.2d 452,” ¶23.
Binding Authority -- Conflicting State and U.S. Supreme Court Cases
State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg
Issue/Holding: "[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court," ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995). And, ¶10, utilizing same quote: “Therefore, we apply Richter because it is the most recent supreme court decision on the topic.”
But it’s not quite that simple. In context, Jones merely said that when supreme court cases conflict, you follow the more recent pronouncement. The distinction is significant because the court of appeals, unlike the supreme court, can’t modify language from prior cases, let alone reverse them. Here’s another statement of the applicable principle, from Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court's most recent pronouncement. See Krawczyk v. Bank of Sun Prairie, 203 Wis.2d 556, 567, 553 N.W.2d 299 (Ct. App. 1996).” That last cited case says, “When the pertinent supreme court precedents appear to lead to different results, we follow that court's last pronouncement.” You can begin to see the problem – the court of appeals simply elided the requirement that the precedents conflict (or appear to be inconsistent or to lead to different results). Richter does not, at first glance anyway, appear to conflict with relevant precedent; at worst, it leaves out a requirement (that the police officer utilizing emergency powers must be subjectively motivated to provide emergency-type assistance as opposed to mere crime-investigation) that seems not to have been contested or even argued on appeal. Is this nit-picking? No: the court simply isn’t applying the correct test. This leads to a separate, vexing procedural problem: the court of appeals lacks power, as noted, to change prior opinions, State v. Victor K. Johnson, 2004 WI 94, ¶¶17-18 (“It is our goal that the court of appeals speak with a unified voice…”) ; State v. Andre Bolden, 2003 WI App 155, ¶¶9-10; State v. William L. Morford, 2004 WI 5, ¶40. In other words, the court of appeals lacks authority in this very instance to change the applicable rule. And, to the extent Richter simply does not conflict with prior caselaw, the court of appeals lacks the authority to do away with the subjective-intent component of emergency searches. The precedential impact, in other words, is suspect. Leutenegger didn’t file a petition for review, so resolution of this potential problem will have to wait another day, if at all.
If you're curious as to how federal courts treat intra-circuit conflicting opinions, see this discussion by commentator Howard J. Bashman.
Binding Authority -- Conflict in Precedential Case Law -- U.S. Supreme Court
State v. Edward Terrell Jennings, 2002 WI 44, on certification
For Jennings: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶3. We conclude that when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to Wis. Stat § 809.61. If it does not, or if this court declines to accept certification, the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court.
(Grant of certification request, the court stresses, isn't mandatory, because under Supremacy Clause all lower courts must defer to Supreme Court on questions of federal law. ¶¶16-19.)
Binding Authority -- Conflicting State and U.S. Supreme Court Cases
State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting
Issue/Holding: Though the court of appeals isn’t bound by state court precedent when it conflicts with subsequent U.S. Supreme Court pronouncement, the court of appeals is required to follow state precedent that the litigant argues conflicts with prior Supreme Court cases. ¶14.
Binding Authority -- Power to Overrule Court of Appeals, Limited to Supreme Court
State v. Miyosha White, 2004 WI App 237, PFR filed 12/1/04
For White: Leonard Kachinsky
Issue/Holding:
¶7 Here, however, we must first determine whether interpretation of WIS. STAT. § 973.01(3g), the ERP statute, is governed by Lehman, a decision of this court interpreting the nearly identical language of WIS. STAT. § 973.01(3m), the CIP statute. If Lehman controls the interpretation of both parts of § 973.01, we are constrained by our prior decision; this court does not have the power to overrule, modify, or withdraw any language from that opinion. Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997). Despite its division into districts, the court of appeals functions as a unitary court and must speak with one voice. In re Court of Appeals, 82 Wis. 2d 369, 371, 263 N.W.2d 149 (1978). Even if we were to disagree with Lehman, we would thus be limited to signaling our disfavor rather than correcting any perceived error. Cook, 208 Wis. 2d at 190.

¶12. Many of the points White raises were addressed in Lehman.4 We recognize that reasonable minds might disagree over whether the contested language in Wis. Stat. § 973.01(3m) and 3(g) is ambiguous, but this court has already spoken on the issue. If White wishes to challenge that determination, he must address his argument to the only court with the power to modify or overrule Lehman, the supreme court.

Binding Authority -- Power to Overrule Court of Appeals, Limited to Supreme Court
State v. Victor K. Johnson, 2004 WI 94, affirming unpublished decision of court of appeals
For Johnson: James R. Lucius
Issue/Holding:
¶17. The court in Kuehl stated that Haseltine (where a witness gave his expert opinion) and Jackson (where an eye-witness testified about what he claimed to have seen) conflicted, and it concluded that because of that perceived conflict, it was "free to follow the decision which [it] conclude[s] is correct." Kuehl, 199 Wis. 2d at 149. The court gave no authority for this proposition; and we know of none. Therefore, any language in Kuehl that purports to overrule or undermine Jackson should not be accorded any precedential value in the future.

¶18. It is our goal that the court of appeals speak with a unified voice, see Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997), and it generally achieves that goal exceedingly well. However, when a perceived conflict arises, which is understandable given the huge volume of cases the court of appeals so capably handles, a certification to this court that points out the perceived conflict will best serve the public interest and will also aid this court in its law developing and clarifying function. See id. However, overruling an earlier court of appeals decision is not an option

Binding Authority -- Power to Overrule Court of Appeals, Limited to Supreme Court
State v. Andre Bolden, 2003 WI App 155, PFR filed 7/2/03
For Bolden: Mark S. Rosen
Issue/Holding:
¶9. Bolden argues, however, that Jackson was overruled by another court of appeals decision, State v. Kuehl, 199 Wis. 2d 143, 147-151, 545 N.W.2d 840, 841-843 (Ct. App. 1995). Kuehl does purport to overrule Jackson, but under this court's "power," as recognized by Cook v. Cook, 208 Wis. 2d 166, 189-190, 560 N.W.2d 246, 256 (1997), it could not do so: "[W]e conclude that the constitution and statutes must be read to provide that only the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals." See also In re Court of Appeals of Wisconsin, 82 Wis. 2d 369, 371, 263 N.W.2d 149, 149-150 (1978) ("The published decision of any one of the panels has binding effect on all panels of the Court."); American Family Mut. Ins. Co. v. Pleasant Co., 2002 WI App 229, ¶18, 257 Wis. 2d 771, 783, 652 N.W.2d 123, 129 ("This court does not have the authority to overrule, modify, or withdraw language from our prior decisions; only the supreme court may do so."), review granted, 258 Wis. 2d 106, 655 N.W.2d 127.

¶10. Although Jackson and Kuehl preceded Cook, this makes no difference. Cook based its ruling on "power" not policy. If the court of appeals lacked the "power" to overrule or modify its prior decisions after Cook, it certainly also lacked that power before Cook. This was specifically recognized by In re Court of Appeals, which, as we have seen, noted in 1978 that a published decision by one panel was "binding" on the other panels. See Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 722-723, 599 N.W.2d 411, 418-419 (Ct. App. 1999) (recognizing that Cook was applicable to cases decided before Cook).

(But does the court of appeals' lack of power to withdraw language from published decisions include dicta? The supreme court has clearly suggested that it does, State v. William L. Morford, 2004 WI 5, ¶40.)
Binding Authority -- Wisconsin Case Law, Subsequently Reversed "On Other Grounds"
State v. Gary M.B., 2003 WI App 72, affirmed on other grounds, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding: A court of appeals holding in a case reversed by the supreme court on other grounds, so that this holding was neither “overruled, withdrawn, or modified,” continues to bind the court of appeals. ¶13.
The court of appeals had held under similar circumstances to Gary M.B.’s that defensive use didn’t trigger waiver, Vanlue v. State, 87 Wis. 2d 455, 275 N.W.2d 115 (Ct. App. 1978), but the mandate was then reversed by the supreme court, 96 Wis. 2d 81, 291 N.W.2d 467 (1980), on the ground that the challenged evidence was admissible anyway. The Gary M.B. court of appeals said that its Vanlue (non)waiver holding remained binding, because the decision had been reversed “on other grounds.” (“¶13. Our conclusion on the issue at hand in Vanlue has not been overruled, withdrawn, or modified and we are bound to follow it.”) The supreme court did not address this significant procedural issue. More accurately, the majority doesn’t address it; the Chief Justice’s 2-vote dissent does, ¶44 n. 1, tentatively asserting “that when this court reviews a decision of the court of appeals, the court of appeals no longer has precedential value.” Hard to believe we’ve heard the last of this. One thing’s for sure: the court of appeals holding in this case (overruling “on other grounds” doesn’t strip the rest of the decision of precedential effect) remains binding. E.g., State v. Andre Bolden, 2003 WI App 155, ¶¶9-10 (only supreme court has authority to modify, or withdraw language from, court of appeals’ decisions); State v. William L. Morford, 2004 WI 5, ¶40 (intimating that this inhibition extends to dicta).)
Binding Authority -- US Supreme Court Case Law
State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:
¶11. As Gary correctly notes, however, we are not bound by the Ohler decision because the Supreme Court's holding did not rest on an interpretation of U.S. Constitutional or other "federal law" that we must apply in this case. Rather, the Court in Ohler enunciated a rule of administration3 applicable to the federal courts based on what it deemed to be a "well-established commonsense principle." Id. at 756. Holdings of the United States Supreme Court are binding on this court only when they address questions of federal law which govern the dispute before us. See State v. King, 205 Wis. 2d 81, 93, 555 N.W.2d 189 (Ct. App. 1996). The question of whether Gary waived the right to challenge in this court the trial court's ruling on the number of convictions admissible for impeachment purposes is not a question of federal law. We are therefore free to apply our own notion of "commonsense principles" in determining whether to find waiver in a defendant's preemptive introduction of conviction evidence in response to a court's pre-trial denial of a motion to exclude it.
-----------------
3 Waiver rules applied by appellate courts are "rule[s] of administration," not of jurisdiction or of the court's power. See, e.g., State v. Riekkoff, 112 Wis. 2d 119, 124, 332 N.W.2d 744 (1983).
The supreme court affirmance of the court of appeals approved this distinct point, 2004 WI 33 ¶17.
Binding Authority -- Published Wisconsin Court of Appeals Opinion
State v. Steven G. Walters, 2003 WI App 24, reversed on other grounds, 2004 WI 18
For Walters: Jenelle L. Glasbrenner, David A. Danz
Issue/Holding:
¶25. We cannot ignore the arguments offered by the State at the trial court level at both the motion to exclude before Judge Race and the motion for reconsideration before Judge Carlson. We are troubled by the district attorney's arguments that a trial court is free to ignore published decisions of the court of appeals. Walworth County District Attorney Phillip Koss argued on numerous occasions, and the trial court implicitly agreed, that Richard A.P. was "obviously" wrongly decided and need not be followed. While the district attorney may think that Richard A.P. was an "obviously" wrong decision and contrary to nationwide precedent, it is the law. Our supreme court has upheld the tenets of Richard A.P. in Davis.

¶26. Officially published opinions of the court of appeals have statewide precedential effect. Wis. Stat. §§ 752.41(2), 809.23; see also Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246 (1997). Lower courts are bound by the precedent of our published decisions and the decisions of the Wisconsin Supreme Court, whether the lower courts agree with the law or not. A district attorney who may disagree with the law is still obligated to follow it.

Binding Authority -- Dicta
State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth
Issue/Holding: ¶33 n. 4:
For discussions of Wisconsin's views on dictum, see, e.g., State v. Picotte, 2003 WI 42, ¶¶60-61 n.16, 261 Wis. 2d 249, 661 N.W.2d 381 (reviewing two lines of cases on dictum); State v. Leitner, 2002 WI 77, ¶22 n.16, 253 Wis. 2d 449, 646 N.W.2d 341 (same); State v. Sartin, 200 Wis. 2d 47, 60 n.7, 546 N.W.2d 449 (1996) ("dictum is a statement in a court's opinion that goes beyond the facts in the case and is broader than necessary and not essential to the determination of the issues before it"; dictum is not controlling); State v. Koput, 142 Wis. 2d 370, 386 n.12, 418 N.W.2d 804 (1988) (it is not inappropriate for a court to evaluate statements in Supreme Court opinions on the basis of whether they constitute dicta); Nicholson v. Home Ins. Cos., 137 Wis. 2d 581, 602, 405 N.W.2d 327 (1987) (disapproving of discussion of reducing clause in Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 345 N.W.2d 874 (1984), as dicta); Am. Family Mut. Ins. Co. v. Shannon, 120 Wis. 2d 560, 565, 356 N.W.2d 175 (1984) (adopting the generally accepted doctrine that "a statement not addressed to the question before the court or necessary for its decision" is dictum, and not binding on the court); Reiter v. Dyken, 95 Wis. 2d 461, 474, 290 N.W.2d 510 (1980) (same).
Narrow view of dicta, at least when looking for guidance from Supreme Court, Bradley v. Henry, 9th Cir No. 04-15919, 6/22/05:
Still, a doubt persists. Dicta in normal judicial parlance are statements of a court not necessary to its resolution of the case before it; holdings consist in the rules disposing of the case. But the Supreme Court often enough enunciates principles of law that are not actually applied in the case before it. The principles would be categorized as dicta if the court were not the Supreme Court. But these principles are treated by courts and commentators as established federal law.

...

It would be rash for us to disregard the pronouncement of Justice Cardozo and its acknowledgment in Stincer and Spain and Gagnon because a technical reading of these cases could classify the relevant principle as dicta. The Constitution lives by such comprehensive commentary from the Supreme Court. We cannot deprive the document of vitality by squeezing great principles into a dustbin labeled dicta. We apply as established federal law the broad principle set out in Snyder, Stincer, Spain and Gagnon. This approach appears to be confirmed by the gloss written by the Supreme Court on “holdings, as opposed to dicta.” ...

Binding Authority -- Consideration of Foreign Authority When Wisconsin Law Is Unclear
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
For Muckerheide: Mark S. Rosen
Issue/Holding:
¶38      We agree with the State's assertion that cases from other jurisdictions are not binding on Wisconsin courts. State ex rel. E.R. v. Flynn, 88 Wis. 2d 37, 46, 276 N.W.2d 313 (Ct. App. 1979). We recognize that such case law is oftentimes helpful, and may be persuasive, but we hold that the circuit court and court of appeals did not err in deciding not to follow the decision in State v. Young, 739 P.2d 1170, since they were not required to do so, and did not find the reasoning persuasive.
Binding Authority -- Law of the Case Doctrine – Inapplicable to Trial-Level Decisions
State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶10      We first examine the trial court’s reliance on the earlier order and its determination that it was “the law of the case.” Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:
The law of the case doctrine is inapplicable. It is a “longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.”
We agree. There is no “law of the case” to this legal dispute.
Scrolling further down, the reader will see that the law of the case doesn't quite bind an appellate court in a subsequent appeal in the case. Proceedings in the trial court on remand, though, may be subject to different considerations, as illustrated by People v. Dutra, Cal App No. C051198, 12/20/06 (trial court remained subject to compliance with terms of remand, despite intervening caselaw):
The trial court was bound not by law of the case but by the terms of our remittitur. A trial court may not disobey a remittitur, as that would amount to overruling the appellate court’s decision, thereby violating a basic legal principle:
“Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The term of the remittitur should have been obeyed by the trial court.
That said, it also should be kept in mind that law of the case applies after all to principles of "law," so that at least in some instances where discretion is in play the trial court may revisit an earlier ruling notwithstanding its affirmance on prior appeal, State v. Wurtz, 141 Wis.2d 795, 800, 416 N.W.2d 623 (Ct.App. 1987) ("However, when an appellate court affirms a discretionary ruling, its decision does not reflect the law of the case unless a question of law is resolved. ... We hold that the subsequent trial court on remand is not limited to the discretionary decisions made by the original court, but is bound only to apply the law determined by the appellate court in reaching a reasoned conclusion.")
Binding Authority -- Law of the Case
State v. Richard A. Moeck, 2004 WI App 47, affirmed, 2005 WI 57, ¶¶17-31
For Moeck: David D. Cook
Issue/Holding:
¶20. The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989) (citation omitted). We are not bound to follow the doctrine, however. Id. at 38-39 (clarifying the doctrine is not "a rule to be inexorably followed in every case"). We may disregard it in the interest of justice or "in certain circumstances when `cogent, substantial, and proper reasons exist.'" Id. at 39 (citation omitted).

¶21. Those circumstances are present here. When we reviewed Moeck's petition for review, we examined Judge Montabon's written order and not his oral decision on the State's motion for a mistrial. Though the two are similar in some respects, the oral decision makes clear that the trial court left the mistrial decision up to the State. The trial court would have given a curative instruction had the State requested that instead of a mistrial. And the court reasoned that defense counsel's failure to produce evidence promised in opening statement necessitated a mistrial. Had we reviewed the transcript, we would have observed this.

Binding Authority -- Law of the Case
State v. Gregg A. Pfaff, 2004 WI App 31
For Pfaff: Rex Anderegg
Issue/Holding: “The law of the case doctrine holds that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or a later appeal. State v. Stuart, 2003 WI 73, 23, 262 Wis.2d 620, 664 N.W.2d 82.” ¶16. But where the prior holding turned on an issue distinct from that being raised on the present appeal the doctrine is inapplicable. (In this instance, the prior and present appeals both raise “probable cause,” but the tests are distinct [plausibility in one instance, credibility in the other], hence law of the case doesn’t apply.) ¶17.
Binding Authority -- Law of the Case -- Generally
State v. Paul J. Stuart, 2003 WI 73, on certification (subsequently reversed on other grounds, State v. Paul J. Stuart, 2005 WI 47)
For Stuart: Christopher W. Rose
Issue/Holding:
¶23. The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989) (internal citation omitted). Thus, a circuit court is generally bound to apply decisions made by the court of appeals or supreme court in a particular case….

¶24. However, the rule is not absolute…. This court has found that a court should adhere to the law of the case "unless the evidence on a subsequent trial was substantially different, [or] controlling authority has since made a contrary decision of the law applicable to such issues." Brady, 130 Wis. 2d at 448 (brackets in original) (citing White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967)). More broadly, this court has found that "It is within the power of the courts to disregard the rule of 'law of the case' in the interests of justice." Id. at 447 (internal quotations and citations omitted). The Supreme Court and other courts have stated similar reasons. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817 (1988) (citation omitted) (noting that a court should "be loathe" to reconsider previous decisions it or a coordinate court has rendered "in the absence of extraordinary circumstances such as where the initial decision was 'clearly erroneous and would work a manifest injustice'"); Oladeinde, 230 F.3d at 1288 (allowing reconsideration if "new and substantially different evidence is produced, or there has been a change in controlling authority" or if the prior decision "was clearly erroneous and would result in a manifest injustice"); Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1134 (D.C. Cir. 1994).

The subsequent decision (2005 WI 47) held, ¶3 n. 2:
Under the law of the case doctrine, "'a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.'"  State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82 (quoting Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989)). This rule, however, is not absolute.  Id., ¶24.  An appellate court may disregard the doctrine in the interest of justice or in certain circumstances when "'cogent, substantial, and proper reasons exist.'"  Id., ¶24 (quoting Univest, 148 Wis. 2d at 39).  Because Crawford v. Washington, 541 U.S. 36 (2004) represents a change in controlling authority, the State acknowledges that the law of the case doctrine does not preclude us from revisiting Stuart's Confrontation Clause claim.  We agree.
Binding Authority -- Law of the Case -- Effect of Summary Affirmance
State v. Paul J. Stuart, 2003 WI 73, on certification (subsequently reversed on other grounds, State v. Paul J. Stuart, 2005 WI 47)
For Stuart: Christopher W. Rose
Issue/Holding: Supreme court disposition of an earlier appeal via summary order is law of the case as to subsequent appeal; the order resolved a question of law despite failing to state reasons: though an affirmance of a discretionary ruling may not determine a question of law, a reversal necessarily does. ¶27. Nor does it matter that no reasons were stated in the order: "There is nothing that requires this court to state its reasons. The United States Supreme Court has made clear that reasons are not necessary for the law of the case doctrine to apply." ¶28. Further, the rule relating to the supreme court's issuance of opinions (§ 751.10) does not require the court to provide a statement of reasons in contrast to the statute governing court of appeals' decision, § 752.41(1), which does. ¶28.
Binding Authority -- Law of the Case
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether prior appellate resolution of defendant's arguments bars their subsequent renewal.
Holding:
¶15. We have twice previously concluded that the court had personal and subject matter jurisdiction to convict and sentence Casteel. See Casteel, Nos. 85-2248-CR, 86-0605-CR, 92-0321 and 92-0322. A decision on a legal issue by an appellate court establishes the law of the case that must be followed in all subsequent proceedings in the case in both the circuit and appellate courts. State v. Brady, 130 Wis. 2d 443, 448, 388 N.W.2d 151 (1986). Casteel has not rationally identified any other mistake in law or any reason that justifies relief from the conviction and sentence. We therefore reject this argument.
Binding Authority -- Mandate -- Defective, Plea-Based Suppression Hearing: Vacate Plea, Notwithstanding Affirmance of Refusal to SuppressVoluntariness
State v. Lucian Agnello II, 2004 WI App 2, (AG’s) PFR filed 1/8/04, on appeal after remand, 2003 WI 44; prior history: State v. Agnello I, 226 Wis.2d 164, 593 N.W.2d 427 (1999)
For Agnello: Jerome F. Buting, Pamela Moorshead
Issue: Whether the defendant is entitled to withdraw his guilty plea and to have a trial under the supreme court’s mandate in his prior appeal, which vacated his guilty plea-based conviction and remanded for a new hearing on voluntariness of his confession, ultimately resulting in affirmance of the refusal to suppress.
Holding:
¶26. To resolve this issue, we have attempted to find cases in which the supreme court vacated convictions in similar circumstances, and we have located State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798. Jiles involves a defendant very similarly situated to Agnello…. After deciding that Jiles' Miranda-Goodchild hearing was inadequate, the court stated: "Jiles is entitled to withdraw his guilty plea and to be granted a new and sufficient Miranda-Goodchild hearing. After this hearing, he is entitled to a trial if he so desires." Id., 49 (emphasis added).

¶27. We find the decision in Jiles instructive on the supreme court's intent when it vacated Agnello's conviction. Jiles was decided just one month after the supreme court issued the order in this case vacating the certification. We therefore assume the supreme court had in mind the lack of specific directions in Agnello when it chose to specify that Jiles was entitled to a trial if he desired. We can discern no reason why the supreme court would treat such similarly situated parties differently. In each case the defendant entered a guilty plea after his motion to suppress his statements was denied. In each case the supreme court determined that the hearing on the motion was defective and the defendant was entitled to another hearing, and it reversed the conviction.

¶28. We therefore conclude the supreme court intended that Agnello would be entitled to a trial after the Goodchild hearing if he chose, just as the court granted Jiles that choice. Accordingly, we reverse the trial court's order denying Agnello's request for a trial and remand for trial.

Binding Authority -- Retroactivity of New Decision -- "New" Rule of Law
State v. Olayinka Kazeem Lagundoye, 2004 WI 4, affirming 2003 WI App 63, 260 Wis. 2d 805, 659 N.W.2d 501
For Lagundoye: Geoffrey Y. Muwonge
Issue/Holding:
¶26. Likewise, it is clear that under Wisconsin's formulation of the Teague doctrine, the rule we announced in Douangmala was "new." "'[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" State v. Lo, 2003 WI 107, ¶62 n.1, 264 Wis. 2d 1, 665 N.W.2d 756 (quoting Teague, 489 U.S. at 301) (emphasis in original). The proper inquiry is not whether a case implicated an "old notion." Dissent, ¶70. Rather,
"a case announces a new rule if its outcome was susceptible to debate among reasonable minds, or if a contrary result would not have been an illogical or even a grudging application of prior precedent." In contrast, a case extends an old rule only if its holding is "compelled or dictated by existing precedent."
Horton, 195 Wis. 2d at 291 (citations omitted). Therefore, the pertinent question is not whether the issue or question before the court was pre-existing, dissent, ¶59, but whether the court's holding or the rule it announced adhered to precedent on a pre-existing issue.

¶27. The result in Douangmala was not dictated by precedent; it overruled a line of precedent applying the harmless-error analysis to violations of § 971.08(1)(c).…

It isn’t determinative that the “new” holding is “based on the plain language of” the construed statute; nor, for that matter, that the holding relates to a statute’s interpretation, ¶¶28-29.
Binding Authority -- Retroactivity Analysis
State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School
Issue/Holding: Retroactivity on collateral attack of a  “new” rule– one imposing a new obligation on the state and not dictated by prior precedent – must satisfy the test of Teague v. Lane, 489 U.S. 288 (1989), ¶62: ¶63. As we noted in State v. Howard, 211 Wis. 2d 269, 282, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, ___ Wis. 2d ___, ___ N.W.2d ___, the United States Supreme Court set the parameters for the federal doctrine of non-retroactivity in collateral proceedings in its Teague decision. New rules merit retroactive application on collateral review only in two instances. "First, a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part)). "Second, a new rule should be applied retroactively if it requires the observance of 'those procedures that are implicit in the concept of ordered liberty.'" Id. (citing Mackey, 401 U.S. at 693) (Harlan, J., concurring in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937))). In Graham, the Court defined the second element of retroactivity on collateral review as one involving a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Graham, 506 U.S. at 478. The Court explained that this retroactivity exception is meant to apply to only a small core of rules that are implicit in the concept of ordered liberty. Id.

(In this particular instance, the holding of State v. Head, 2002 WI 99 [first-degree intentional homicide mitigated to 2nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] deemed a new rule not requiring retroactive application to collateral attacks under this test. ¶¶70-71. The court also recognizes, though in passing, that “a change in substantive law” isn’t governed by Teague, ¶72. And, the court seems to acknowledge that a change in proof of the elements would be a substantive change, but the court scants the change it actually worked in Head, which it characterizes as a mere change as to how the state disproves mitigators while the elements remain the same. ¶73.

Binding Authority -- Retroactivity of New Decision -- Teague Analysis
State v. Olayinka Kazeem Lagundoye, 2004 WI 4, affirming 2003 WI App 63, 260 Wis. 2d 805, 659 N.W.2d 501
For Lagundoye: Geoffrey Y. Muwonge
Issue/Holding:
¶11. There are three lines of cases that govern whether a rule should be applied retroactively to criminal cases on appeal. These cases establish that whether a rule should be applied retroactively is dependent upon two threshold determinations: 1) whether the rule is a new rule of substance or new rule of criminal procedure and 2) whether the case which seeks to benefit from retroactive application is on direct review or is final, such that it is before the court on collateral review.

¶12. First, a new rule of substantive criminal law is presumptively applied retroactively to all cases, whether on direct appeal or on collateral review. See Bousley v. United States, 523 U.S. 614, 620-21 (1998); State v. Howard, 211 Wis. 2d 269, 283-85, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, ¶40, 262 Wis. 2d 380, 663 N.W.2d 765. Second, Wisconsin follows the federal rule announced in Griffith v. Kentucky, 479 U.S. 314, 328 (1987), that new rules of criminal procedure are to be applied retroactively to all cases pending on direct review or non-finalized cases still in the direct appeal pipeline. State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993).

¶13. Third, a new rule of criminal procedure generally cannot be applied retroactively to cases that were final before the rule's issuance under the federal nonretroactivity doctrine announced by the Supreme Court plurality opinion in Teague v. Lane, 489 U.S. 288 (1989), and later adopted by the majority of the Court in Graham v. Collins, 506 U.S. 461, 467 (1993). Under Teague, a new rule of criminal procedure is not applied retroactively to cases on collateral review unless it falls under either of two well-delineated exceptions. Teague, 489 U.S. at 307. First, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it "places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. (citation omitted). Second, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it encompasses procedures that "'are implicit in the concept of ordered liberty.'" Id. (citation omitted).

Teague analysis, the court clarifies, is fully applicable, ¶¶14-18.
¶19. Schmelzer, therefore, stands for the proposition that this court can create a new rule of criminal procedure on habeas corpus review and apply the new rule to the case before it-the habeas case wherein the rule was created-even if that case could have come to this court only on collateral review. The court can create a new rule in this limited situation, even though the rule would not apply retroactively to other cases that are final. However, Schmelzer does not stand for the proposition that this court can apply a previously announced new rule retroactively to a case on collateral review when the rule does not otherwise fall within either of the two Teague exceptions. Therefore, we withdraw our language from Howard, 211 Wis. 2d at 285, to the extent it implies that Wisconsin recognizes a third exception to the general rule of nonretroactivity for cases on collateral review.
(Finality of a criminal case is defined as follows, ¶20: “A case is final if the prosecution is no longer pending, a judgment or conviction has been entered, the right to a state court appeal from a final judgment has been exhausted, and time for certiorari review in the United States Supreme Court has expired.” Note, additionally, that failure to file a notice of intent to pursue postconviction relief means that the “right to a direct appeal [has] expired.” Id. n. 13.)
Note "that while a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards, it may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Arkansas v. Sullivan, 532 US 769, 772 (2001).
Binding Authority -- Retroactivity of New Decision -- Substantive Change, Compared with Procedural
State v. Olayinka Kazeem Lagundoye, 2004 WI 4, affirming 2003 WI App 63, 260 Wis. 2d 805, 659 N.W.2d 501
For Lagundoye: Geoffrey Y. Muwonge
Issue/Holding:
¶21 … In E.B. v. State, 111 Wis. 2d 175, 189, 330 N.W.2d 584 (1983), this court held that "'substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas, procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.'" (citing Roberts v. Love, 333 S.W.2d 897, 901 (Ark. 1960); State v. Garcia, 229 So.2d 236, 238 (Fla. 1969); State v. Augustine, 416 P.2d 281, 283 (Kan. 1996)) (emphasis in original).
The fact that the new case law construes a statute is not determinative; a new interpretation of “what acts were proscribed under the statute” is “substantive,” while a change in “‘the steps by which one who violates a [substantive criminal statute is punished’ is, by definition, procedural,” ¶22. Thus,
¶24 … the test for determining whether a new rule constitutes substantive law is not whether the defendant's convictions would be reversed under the new rule or whether the new rule has a "substantive impact" on a defendant. Dissent, ¶84. Rather, the test for determining whether a new rule is substantive or procedural is whether the new rule affected the legality of the underlying conduct for which he was convicted. Bousley, 523 U.S. at 620; See also State v. Kurzawa, 180 Wis. 2d 502, 512, 509 N.W.2d 712 (1994) (noting that when a new rule "criminalized conduct that was innocent when committed, it could not be retroactively applied" because of ex post facto concerns); E.B., 111 Wis. 2d at 189 (defining "substantive law").
(See also ¶32: “substantive” rules relate to placing “conduct beyond the power of the criminal law-making authority to proscribe.” And, procedural rules may indeed require retroactive application if they “are implicit in the concept of ordered liberty,” i.e., “watershed rules of criminal procedure,” ¶33, such as to “implicate the fairness and accuracy of the fact-finding process,” ¶35.)
It follows that "that a 'watershed' rule of criminal procedure is one that is fundamentally necessary to ensure that a criminal defendant is not wrongly convicted," and that new rules with respect to sentencing can't be applied retroactively. Page v. Palmateer, OR SCt S50171, 2/5/04.
Binding Authority -- Retroactivity -- Statute Declared Unconstitutional
State v. Paul R. Benzel, 220 Wis. 2d 588, 583 N.W.2d 434 (Ct. App. 1998)
For Benzel: Pro se
Issue/Holding: The holding of State v. Hall, 207 Wis.2d 54, 557 N.W.2d 778 (1997), that the drug tax, § 139.95, is unconstitutional applies retroactively: "failure to do so leads to the untenable result that a person stands convicted for conduct which has been held constitutionally immune from punishment. ... (¶) A court cannot acquire jurisdiction to try a person for an act made criminal only by an unconstitutional law."
Binding Authority – Stare Decisis
State v. Vincent T. Grady, 2007 WI 81, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶20      A prior interpretation of a statute is applied when courts subsequently consider the same statute. Progressive Northern Ins. Co. v. Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697 N.W.2d 417. The court may overturn a prior interpretation of a statute when it has been shown "not only that [the previous decision] was mistaken but also that it was objectively wrong, so that the court has a compelling reason to overrule it." Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. Our adherence to a previous interpretation applies to both decisions of this court and the court of appeals. State v. Douangmala, 2002 WI 62, ¶42, 253 Wis. 2d 173, 646 N.W.2d 1.

The court goes on to say that where a prior case did not in fact reach a certain issue, the stare decisis principle isn’t triggered, even though subsequent cases mistakenly if repetitively described that case as having enunciated a “holding” on that issue: these “characterizations … do not represent holdings of any appellate court,” ¶25.

Binding Authority -- Stare Decisis
Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91
Issue/Holding:
¶31      This opinion first explores the advisability of overturning Maurin. Stare decisis, let the decision stand, is a basic tenet of law. "This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law." 13] Stare decisis contributes to the integrity of the judicial process. Nonetheless, "stare decisis is not a mechanical formula for adherence to the latest decision," and a court should, in applying the doctrine of stare decisis, overturn its own decisions when the situation calls for such a measure.

¶32      Any departure from the doctrine of stare decisis, however, demands special justification. [14] "No change in the law is justified by a change in the membership of the court or a case with more egregious facts." [15]

¶33      Five factors typically contribute to a decision to overturn prior case law. This court is more likely to overturn a prior decision when one or more of the following circumstances is present: (1) Changes or developments in the law have undermined the rationale behind a decision; (2) there is a need to make a decision correspond to newly ascertained facts; (3) there is a showing that the precedent has become detrimental to coherence and consistency in the law; (4) the prior decision is "unsound in principle;" or (5) the prior decision is "unworkable in practice." [16]

¶34      Furthermore, "the decision to overrule a prior case may turn on whether the prior case was correctly decided and whether it has produced a settled body of law." [17] A court must keep in mind that it does "more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision." [18]

(If you’re looking to festoon your briefcase with a sticker capturing the essence, if not quite the rhetoric, of this passage, go here.)
Binding Authority -- Stare Decisis
Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125
Issue/Holding:
¶30 The doctrine of stare decisis, or "stand by things decided,"[23] normally compels a court to follow its prior decisions. "Fidelity to precedent ensures that existing law will not be abandoned lightly."[24] We have stated that stare decisis is not mechanical in application, nor is it a rule to be inexorably followed.[25]

¶31 The doctrine of stare decisis is inapplicable here. Although Wisconsin appellate decisions have treaded close to the constitutionality of the cap on recovery of noneconomic damages in medical malpractice cases, none has reached the issue central to the instant case. Nevertheless, the prior cases, including equal protection challenges to various provisions of chapter 655, inform our decision.


Standard of Review -- Burden of Proof

Standard of Review -- Burden of Proof – Allocation: Impediments to Defendant’s Ability to Communicate, Shackling Deaf Defendant
State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶7        Which party bears the burden of proof presents a question of law for our de novo review. Long v. Ardestani, 2001 WI App 46, ¶36, 241 Wis. 2d 498, 624 N.W.2d 405. Whether a party has met its burden also presents a question of law that we review independently. State v. Brown, 2005 WI 29, ¶37, 279 Wis. 2d 102, 693 N.W.2d 715. We consider several factors in allocating this burden, including, (1) the natural tendency to place the burden of proof on the party seeking to change the status quo; (2) special policy considerations, such as those disfavoring particular defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities. See State v. Armstrong, 223 Wis. 2d 331, 349 n.21, 588 N.W.2d 606 (1999), modified, 225 Wis. 2d 121, 591 N.W.2d 604 (Nos. 97-0925-CR and 97-0926-CR). Three of these factors predominate here, and they weigh heavily toward imposing the burden on Russ. First, it is Russ who seeks to challenge the status quo by asking for resentencing. Second, convenience and fairness warrant assigning the burden to Russ. “A doctrine often repeated by the courts is that where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.” See State v. McFarren, 62 Wis. 2d 492, 500, 215 N.W.2d 459 (1974) (citation omitted). This doctrine holds particularly true where the opposing party would have to prove a negative and where the fact to be proven relates personally to the accused. Id. at 500-01. Whether Russ attempted unsuccessfully to communicate with his counsel, his interpreters, or the court, relates personally to Russ and lies within his peculiar knowledge. Moreover, the State would have to prove a negative if we required it to show that Russ was never hindered in communicating with anyone. Cf. Cooper v. State, 565 N.W.2d 27, 29-31, 34 (Minn. Ct. App. 1997) (affirming conviction of a deaf defendant who claimed ineffective assistance of trial counsel for failure to use an interpreter at two-thirds of their pretrial meeting; noting that the defendant did not claim that he failed to impart any piece of information to his attorney).
Standard of Review -- Burden of Proof
City of Pewaukee v. Thomas L. Carter, 2004 WI 136, reversing 2003 WI App 260
For Carter: Rex Enderegg
Issue/Holding: ¶35 n. 28: “(W)hether a party meets its burden of proof is a question of law. Hallin v. Hallin, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999).”
Standard of Review -- Burden of Proof
Hallin v. Hallin, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999)
Issue/Holding:
Whether a party has met its burden of proof is a question of law which this court may examine without giving deference to the trial court’s conclusion. See Burg v. Miniature Precision Components, Inc., 107 Wis.2d 277, 287, 319 N.W.2d 921, 927 (Ct. App. 1982), rev’d in part on other grounds, 111 Wis.2d 1, 330 N.W.2d 192 (1983). However, we must accept the trial court’s assessment of the credibility of a witness unless we can say that a witness was credible or incredible as a matter of law. See id.; § 805.17(2), STATS.

Standard of Review -- Certiorari

Standard of Review – Certiorari
Michelle Williams v. Housing Authority of the City of Milwaukee, 2010 WI App 14
Issue/Holding:
¶9        When we review an application for a writ of certiorari, we review the agency’s decision, not the decision of the circuit court. Kraus v. City of Waukesha Police & Fire Comm’n, 2003 WI 51, ¶10, 261 Wis.  2d 485, 662 N.W.2d 294. The scope of certiorari review is limited to whether the Housing Authority: (1) kept within its jurisdiction; (2) proceeded on a correct theory of law; (3) was arbitrary, oppressive, or unreasonable; or (4) might reasonably have made the order or finding based on the evidence.  See id.

¶10      In seeking certiorari review, Williams challenged whether the Housing Authority’s decision was arbitrary, oppressive, or unreasonable; and whether the Housing Authority reasonably made the order based on the evidence. Both questions require us to determine whether the Housing Authority’s decision is founded on sufficient evidence.  See State ex rel. Harris v. Annuity & Pension Bd., 87 Wis.  2d 646, 651-52, 275 N.W.2d 668 (1979). “The sufficiency of evidence on review by common law certiorari is identical to the substantial evidence test used for the review of administrative determinations under [Wis. Stat.] ch. 227.”  Harris, 87 Wis.  2d at 652. “Under this standard a court does not pass on questions of credibility, nor does it weigh the evidence. The test is whether the evidence reasonably supports the decision.”  Id.   If we conclude that the Housing Authority’s decision is not supported by sufficient evidence, we may overturn it.  Cf. Village of Menomonee Falls v. Wisconsin DNR, 140 Wis.  2d 579, 594, 412 N.W.2d 505 (Ct. App. 1987).


Standard of Review -- Civil Commitments (NGI / SVP)

Standard of Review – Civil Commitments – Tuberculosis Treatment
City of Milwaukee v. Ruby Washington, 2007 WI 104, 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:
¶26      A circuit court's decision concerning where to confine a person with tuberculosis who fails to comply with a prescribed treatment regimen is discretionary. "A proper exercise of discretion requires that the trial court rely on facts of record, the applicable law, and, using a demonstrable rational process, reach a reasonable decision." State v. Manuel, 2005 WI 75, ¶24, 281 Wis. 2d 554, 697 N.W.2d 811. Whether the circuit court applied the correct legal standard is a question of law that we review de novo. Landwehr v. Landwehr, 2006 WI 64, ¶8, 291 Wis. 2d 49, 715 N.W.2d 180.
The particular confinement order under review is upheld, albeit with a declaration that future determinations must follow the guidelines laid down by the court in this decision:
¶60      Based on these considerations, we conclude that the order confining Washington to jail was not an erroneous exercise of the circuit court's discretion. Washington was at risk to develop a drug-resistant strain of the disease, had a history of disappearing from sight and was belligerent toward officers. The circuit court reasonably concluded from these factors that medical staff would not have been equipped to handle Washington's outbursts, and that the added security of jail was necessary to ensure that she would continue taking her medication and would not escape confinement. Factoring in taxpayer costs as well was not an erroneous exercise of discretion.

¶61      In future cases, courts should follow the guidelines set forth in this opinion when determining place of confinement under Wis. Stat. § 252.07(9). A court proceeding under § 252.07(9) must ascertain whether a proposed place of confinement is a facility where proper care and treatment will be provided, spread of the disease will be prevented and that no less restrictive alternative placement exists. After applying these criteria to potential placement options, if two or more placement options meet the statutory requirements for treatment and disease prevention, and none of these placement options is significantly less restrictive than the others, the court may take into account the relative costs of the different placements. However, a determination based on cost must be supported by more than mere assumptions about the cost of particular placements.

Civil Commitments -- SVP: Probable Cause, Discharge Petition
State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05
For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶8 The question to be answered by a trial court at a WIS. STAT. § 980.09(2)(a) probable cause hearing is whether probable cause exists to establish that an individual seeking discharge is no longer a sexually violent person. See State v. Schiller, 2003 WI App 195, ¶9, 266 Wis. 2d 992, 669 N.W.2d 747. Whether the facts establish probable cause to believe a person is no longer a sexually violent person is a question of law which we determine independently of the trial court.

¶11 We deem the probable cause determination under WIS. STAT. § 980.09(2)(a), to be the same as a probable cause determination in the circumstance of a criminal bindover proceeding and accordingly, subject to the same standards of review. Thus, upon review:

“The reviewing court can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence.”
State v. Berby, 81 Wis. 2d 677, 684, 260 N.W.2d 798 (1978) (citation omitted).
Civil Commitments -- Revocation of (SVP) Supervised Release, Sufficiency of Evidence
State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers
Issue/Holding:
¶65. Before we address the merits of Burris's claim, we must address again the standard of review. In most instances, the decision to revoke supervised release is a discretionary decision. See ¶45 above. When a judge makes a determination that the safety of others requires that supervised release be revoked, however, the plain language of § 980.06(2)(d) does not afford the decision-maker discretion in the same way that a court or administrative body exercises discretion in the context of probation.

¶70 … When a court revokes under the "safety of others" rationale, the court is charged with making a much more specific finding than a court does when it is determining whether a rule or condition of release has been violated. While the court must first find underlying evidentiary facts as contemplated by Morrissey, the court must also find by clear and convincing evidence that these underlying facts demonstrate that "the safety of others requires that supervised release be revoked." Only after this ground has been proved by the state and determined by the court is the court given authority to revoke supervised release. The second step described by Morrissey as factual, predictive, and discretionary is no longer discretionary when the court makes the determination on "safety of others."

¶71. Thus, we view the finding that the safety of others requires revocation as a mixed question of fact and law because the circuit court is vested with no discretionary power. Instead, the statute directs the circuit court to apply its factual finding to a statutory standard. See Wassenaar v. Panos, 111 Wis. 2d 518, 525, 331 N.W.2d 357 (1983) ("Whether the facts fulfill the legal standard . . . is a determination of law."). When determining whether the safety of others requires that supervised release be revoked, the circuit court first evaluates the evidence presented at the revocation hearing and renders factual findings. We uphold these factual findings unless clearly erroneous. State v. Martwick, 2000 WI 5, ¶18, 231 Wis. 2d 801, 604 N.W.2d 552. The circuit court then determines whether the facts as found meet the particular legal standard set forth by the statute. Whether the facts ascertained by the circuit court prove by clear and convincing evidence that "the safety of others requires that supervised release be revoked" is a question of law. Normally, an appellate court reviewing determinations of law does so without deference to the circuit court. Wassenaar, 111 Wis. 2d at 525. Because the factual findings on "safety of others" under § 980.06(2)(d) are so closely intertwined with the court's determination that, as a matter of law, the safety of others requires that supervised release be revoked, a reviewing court "should give weight to the trial court's decision, although the trial court's decision is not controlling." Id.

Civil Commitments -- NGI Release Petition
Standard of Review, NGI: Commitment for Institutional Care, § 971.17(3)(a)
State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶11      Wisconsin courts have not yet articulated the standard for reviewing a circuit court’s order for commitment under Wis. Stat. § 971.17(3)(a). The State proposes that courts should review such orders under a sufficiency of the evidence standard. Wilinski seems to concede this is the appropriate standard of review. We are also persuaded. As the State points out, our supreme court adopted the sufficiency of the evidence standard of review for orders under Wis. Stat. § 980.08(4), which provides for the supervised release of sexually violent persons. State v. Brown, 2005 WI 29, 279 Wis. 2d 102, 693 N.W.2d 715. Much like § 971.17(3)(a), the statute in Brown required the court to order institutional care if the State proved by clear and convincing evidence it was “substantially probable” the defendant would engage in acts of sexual violence if he was not institutionalized. [2] It also contained a list of factors for the court to consider nearly identical to the one in § 971.17(3)(a).

¶12      The sufficiency of the evidence test asks whether a circuit court could reasonably be convinced by evidence it has a right to believe and accept as true. Brown, 279 Wis. 2d 102, ¶40. If the evidence supports multiple reasonable inferences, we will adopt the inference the circuit court adopts. Id. When applying this standard, reviewing courts give “deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the evidence.” Id., ¶44. We “draw not only on a circuit court’s observational advantage, but also on the circuit court’s reasoning.” Id.

Civil Commitments -- NGI Release Petition
State v. Thomas Wenk, 2001 WI App 268, PFR filed 10/31/01
For Wenk: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶6. The State, and later Wenk, points out that the applicable standard of review for the issue involved in this appeal is unclear. Case law addressing the standard of review when a jury decides a request for conditional release suggests that we must review the evidence in the light most favorable to the verdict while other cases have applied an erroneous exercise of discretion to commitment decisions. See State v. Gebarski, 90 Wis. 2d 754, 780, 280 N.W.2d 672 (1979); State v. Gladney, 120 Wis. 2d 486, 490, 355 N.W.2d 547 (Ct. App. 1984). We reaffirm the standard of review recently set forth in State v. Seibert, 220 Wis. 2d 308, 582 N.W.2d 745 (Ct. App. 1998), a case involving a sexual predator commitment under Chapter 980 of the Wisconsin Statutes (1997-98). There, we stated that a trial court's decision whether to grant a request for conditional release is subject to a discretionary standard of review. Id. at 314. Consequently, we look to see whether the trial court properly exercised its discretion in its determination that Wenk remained dangerous.

Go To Brief

Standard of Review -- Competency of Defendant

Competency of Defendant
State v. Jeremy J. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, affirming as modified State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388
For Byrge: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether competency determinations are reviewed deferentially.
Holding: Because a competency determination "pivots on factors only a trial court can appraise," the court "do(es) not disturb our holding in (State v. Garfoot, 207 Wis. 2d 214, 558 N.W.2d 626 (1997)) and adhere(s) to the clearly erroneous standard for reviewing circuit court determinations in competency proceedings." ¶¶44, 45.
Go To Brief

Standard of Review -- Competency of Trial Court

Competency of Trial Court
State v. George Schertz, 2002 WI App 289
For Schertz: Barbara A. Cadwell
Issue/Holding:
¶5. Whether a trial court has lost competency to act presents a question of law, which we review independently. State v. Kywanda F., 200 Wis. 2d 26, 32-33, 546 N.W.2d 440 (1996). Competency in this context means the court's power to adjudicate the specific type of controversy before it, and the court loses competency when it fails to comply with the requirements necessary for the valid exercise of that power. Green County DHS v. H.N., 162 Wis. 2d 635, 655-56 n.17, 469 N.W.2d 845 (1991).

¶6. In this case, the issue is whether the thirty-day requirement in Wis. Stat. § 971.17(3)(e) is mandatory or directory. "Whether a statute is mandatory or directory is a matter of statutory construction and, as such, is a question of law which we review without deference to the trial court." Combined Investigative Servs. v. Scottsdale Ins. Co., 165 Wis. 2d 262, 273, 477 N.W.2d 82 (Ct. App. 1991). Only when a statutory time limit is mandatory does the circuit court generally lose competence to proceed if that time limit is not met. Cf. Kywanda F., 200 Wis. 2d at 34; see Schoenwald v. M.C., 146 Wis. 2d 377, 391-92, 432 N.W.2d 588 (Ct. App. 1988).


Standard of Review -- Confession

Standard of Review – Confession -- Generally
State v. Vanessa Brockdorf, 2006 WI 76, affirming unpublished decision
For Brockdorf: Martin E. Kohler, Brian Kinstler
Issue/Holding:
¶14      "In reviewing a motion to suppress, we apply a two-step standard of review. First, we review the circuit court's findings of historical fact, and will uphold them unless they are clearly erroneous.  Second, we review the application of constitutional principles to those facts de novo." State v. Eason, 2001 WI 98, ¶9, 245 Wis.  2d 206, 629 N.W.2d 625 (internal citations omitted).
Confessions -- Voluntariness
State v. Lucian Agnello II, 2004 WI App 2, (AG’s) PFR filed 1/8/04, on appeal after remand, 2003 WI 44; prior history: State v. Agnello I, 226 Wis.2d 164, 593 N.W.2d 427 (1999)
For Agnello: Jerome F. Buting, Pamela Moorshead
Issue/Holding:
¶8. Under the due process clause of the Fourteenth Amendment, confessions that are not voluntary are not admissible. Rogers v. Richmond, 365 U.S. 534, 540 (1961). When we review a trial court's determination on the voluntariness of a defendant's confession, we affirm the trial court's findings of historical facts unless they are clearly erroneous. See State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998); Wis. Stat. § 805.17(2) (2001-02). However, the application of the constitutional standard to historical facts is a question of law, which we review de novo. Kieffer, 217 Wis. 2d at 541. The State has the burden of proving voluntariness by a preponderance of the evidence. Agnello, 226 Wis. 2d at 182.

Standard of Review -- Confrontation

Standard of Review: Confrontation, Generally
State v. Mark D. Jensen, 2007 WI 26, on bypass
For Jensen: Craig W. Albee
Issue/Holding:
¶12      Reduced to their essence, the appeal and cross-appeal concern the circuit court's determinations on the testimonial or nontestimonial nature of various statements of Julie's that the State seeks to introduce. [5] "Although a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review." State v. Williams, 2002 WI 58, 253 Wis.  2d 99, ¶7, 644 N.W.2d 919 (citing State v. Ballos, 230 Wis.  2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999)). For purposes of that review, the appellate court must accept the circuit court's findings of fact unless they are clearly erroneous. State v. Jackson, 216 Wis.  2d 646, 575 N.W.2d 475 (1998).
Standard of Review: Confrontation, Limitation on Cross-Examination
State v. Justin Yang, 2006 WI App 48
For Olson: John J. Grau
Issue/Holding: Although the trial court’s decision to admit or exclude evidence is a discretionary one reviewed deferentially, whether that decision comports with legal principles is reviewed de novo. “One of the trial-process concerns that sets boundaries on what evidence the trial court may exclude in criminal trials is the defendant’s right to confrontation.” The right to confront witnesses is central to the truthfinding function, but is not absolute and limits on cross-examination may be imposed to accommodate other legitimate interests such as harassment, prejudice, confusion of issues, and witness safety. Notwithstanding the trial court’s “wide latitude” in this area, the appellate court reviews de novo whether the constitutional right to confrontation was unduly truncated by limits imposed on cross-examination. ¶10, citing State v. Mahlik D. Ellington, 2005 WI App 243, ¶11 and State v. Henry F. McCall, 202 Wis. 2d 29, 43–44, 549 N.W.2d 418, 424 (1996).
Confrontation
State v. Boon Savanh, 2005 WI App 245
For Savanh: Timothy A. Provis
Issue/Holding:
¶13      When a defendant asserts a Confrontation Clause challenge, we first must determine whether the challenged statements are admissible under the rules of evidence. See State v. Manuel, 2005 WI 75, ¶23, ___ Wis. 2d ___, 697 N.W.2d 811. A trial court’s decision to admit evidence is discretionary, and this court must uphold that decision if there was a proper exercise of discretion. Id., ¶24. If the statements are not admissible under the rules of evidence, they are excluded, and we need not proceed to the constitutional question. State v. Tomlinson, 2002 WI 91, ¶41, 254 Wis.  2d 502, 648 N.W.2d 367. If admissible, however, the next step is to examine whether admission of the statements violated the defendant’s right to confront his or her accusers. See Manuel, 697 N.W.2d 811, ¶25. 
Confrontation -- Showing of Unavailability
State v. Daniel D. King, 2005WI App 224
For King: Scott D. Obernberger
Issue/Holding:
¶11 … The trial court held that Shelia J. was “unavailable.” Whether a hearsay declarant is unavailable “for confrontation purposes, is a constitutional fact.” Gollon, 115 Wis. 2d at 601, 340 N.W.2d at 916. Thus, our review is de novo. See id., 115 Wis. 2d at 600, 340 N.W.2d at 916; State v. McBride, 187 Wis. 2d 409, 414, 523 N.W.2d 106, 109 (Ct. App. 1994). …
Confrontation
State v. Tyrone Booker, 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue/Holding:
¶13 Evidentiary rulings are discretionary, and therefore we review them under an erroneous exercise of discretion standard. State v. Hammer, 2000 WI 92, ¶43, 236 Wis. 2d 686, 613 N.W.2d 629. When evidentiary rulings implicate a defendant’s confrontation and compulsory process rights, however, we review those rulings without deference to the circuit court. Id. For purposes of reviewing a question of constitutional fact, we adopt the circuit court’s findings of fact unless clearly erroneous, but independently apply those facts to the constitutional standard. See State v. McMorris, 213 Wis. 2d 156, 165-66, 570 N.W.2d 384 (1997).

¶14 ... The right to present a defense is not absolute, but rather is limited to the presentation of relevant evidence whose probative value is not substantially outweighed by its potential prejudicial effect. See Pulizzano, 155 Wis. 2d at 646. A defendant’s right to present a defense may in some cases require the admission of testimony that would otherwise be excluded under applicable evidentiary rules. See id. at 648.

Confrontation
State v. Harry L. Seymer, 2005 WI App 93
For Seymer: Andrea T. Cornwall, SPD, Milwaukee Appellate
Issue/Holding:
¶8        Generally, the decision whether to admit or exclude evidence is within the circuit court’s discretion.  See State v. Williams, 2002 WI 58, ¶7, 253 Wis.  2d 99, 644 N.W.2d 919. However, this discretion may not be exercised until the court has accommodated the defendant’s right of confrontation. See State v. St. George, 2002 WI 50, ¶16 n.17, 252 Wis. 2d 499, 643 N.W.2d 777. Whether the limitation of cross-examination violates a defendant’s right of confrontation is a question of law that we review de novo. See Williams, 253 Wis. 2d 99, ¶7.
Confrontation
State v. Glenn H. Hale, 2005 WI 7, affirming, as modified, 2003 WI App 238
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶41 While a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of such evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review. State v. Williams, 2002 WI 58, ¶7, 253 Wis. 2d 99, 644 N.W.2d 919 (citing State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999)).
Confrontation
State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding:
¶24. Ordinarily, the admissibility of former testimony into evidence is a discretionary decision of the circuit court, and it will not be overturned unless the circuit court erroneously exercised its discretion Nevertheless, the question of whether the admission of evidence violates an accused's right to confrontation is a question of constitutional fact. When determining a question of constitutional fact, we adopt the circuit court's findings of historical fact unless they are clearly erroneous, but we independently apply the appropriate constitutional standard to those facts.
Confrontation
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Issue/Holding:
¶48. Generally the decision to admit or exclude evidence is within the circuit court's discretion. State v. Williams, 2002 WI 58, at ¶7, ___ Wis. 2d ___, 644 N.W.2d 919. However, this discretion may not be exercised until the court has accommodated the defendant's right of confrontation. See George, 2002 WI 50 at ¶16 n.17 (citing State v. Johnson, 188 Wis. 2d 472, 479, 348 N.W.2d 196 (1984)). Whether the limitation of cross-examination violates the defendant's right of confrontation is a question of law that we review de novo. See Williams, 2002 WI 58 at ¶7.

Standard of Review -- Constitutional Challenge to Statute

First Amendment Challenge to Constitutionality of Statute
State v. Christopher Baron, 2008 WI App 90, PFR filed 6/24/08
For Brown: Daniel P. Dunn
Issue/Holding:
¶7        The constitutionality of a statute is a question of law, which we review de novo. State v. Zarnke, 224 Wis. 2d 116, 124, 589 N.W.2d 370 (1999). In most circumstances, the party challenging the constitutionality of a statute has the burden of proving that the statute is unconstitutional beyond a reasonable doubt. Id. However, because the statute at issue implicates First Amendment rights, the State has the burden of proving beyond a reasonable doubt that the statute is constitutional. Id. at 124-25.
Constitutional Challenge to Statute
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue/Holding:
¶10      The constitutionality of a statute presents a question of law, which we review de novo. Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125, ¶58, 284 Wis. 2d 573, 701 N.W.2d 440. In our review we presume the legislature acted within its constitutional limits and the challenger bears a heavy burden; we resolve any doubts in favor of the constitutionality of the statute. Id., ¶68. This “heavy burden” does not refer to evidentiary proof; in this context, it means that we give deference to the legislature, and our degree of certainty regarding unconstitutionality results from the persuasive force of the legal argument. Id., ¶68 n.71.
Constitutional Challenge to Legislation (Substantive Due Process)
Kenosha Co. DHS v. Jodi W. 2006 WI 93, reversing summary order
For Jodi W.: Joseph W. Voiland, Lewis W. Beilin, Rebecca E. Frihart (Pro Bono Project)
Issue/Holding:
¶21 As a threshold issue, we examine whether Jodie waived her right to challenge the constitutionality of the statute when she entered a plea of no contest. Whether a party has waived his or her right to assert that a statute violates the party's substantive due process rights is a question of constitutional fact.  Waukesha County v. Steven H., 2000 WI 28, ¶51 n.18, 233 Wis. State v. Bangert, 131 Wis. 2d 246, 283-84, 389 N.W.2d 12 (1986)). Although "[w]e review constitutional questions independently of the conclusion of the lower courts[,]" we uphold a circuit court's findings of evidentiary facts unless the findings are "contrary to the great weight and clear preponderance of the evidence." Bangert, 131 Wis. 2d at 283-84 (citations omitted).

¶22  Whether Wis. Stat. § 48.415(2), as applied to Jodie, violates her constitutional right to substantive due process, presents a question of constitutional law, subject to independent appellate review. Monroe County D.H.S. v. Kelli B., 2004 WI 48, ¶16, 271 Wis. 2d 51, 678 N.W.2d 831.

Constitutional Challenge to Legislation – Generally & in Relation to Ch. 980
State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A., SPD, Milwaukee Appellate
Issue/Holding:
¶4        We review de novo whether a statute meets constitutional requirements. State v. Post, 197 Wis. 2d 279, 301, 541 N.W.2d 115 (1995). The challenger bears the burden ofdemonstrating the statute’s infirmity beyond a reasonable doubt. Id. We accord particular deference to reasonable legislative judgments in the mental health arena, in which “the only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment.” See d. at 311 (citation omitted); State v. Dennis H., 2002 WI 104, ¶13, 255 Wis. 2d 359, 647 N.W.2d 851. Even where the statutory scheme impinges upon a fundamental liberty, as commitment admittedly does, we will not invalidate it on substantive due process grounds as long as it is narrowly tailored to a compelling government interest. Post, 197 Wis. 2d at 302. Moreover, we will not declare a statute unconstitutionally vague unless it fails to give notice about what conduct the statute proscribes or fails to provide those who enforce the law with objective standards with which to do so. State v. Curiel, 227 Wis. 2d 389, 415, 597 N.W.2d 697 (1999).
Constitutional Challenge to Statute, Generally
State v. Jeremy P., 2005 WI App 13
For Jeremy P.: Adam B. Stephens
Issue/Holding:
¶5. The constitutionality of a statute is a question of law that we review de novo. State v. McManus, 152 Wis.  2d 113, 129, 447 N.W.2d 654 (1989). All statutes reach us with the presumption that they are constitutional, and the party challenging the statute has the burden of showing beyond a reasonable doubt that it is unconstitutional. Id. There are two major categories of constitutional challenges: "facial" challenges and "as-applied" challenges. Joseph E.G., 2001 WI App 29, ¶5, 240 Wis.  2d 481, 623 N.W.2d 137. Jeremy makes a facial challenge to the constitutionality of requiring certain juveniles adjudicated under the Juvenile Justice Code to register as sex offenders. In doing so, he must prove beyond a reasonable doubt that the challenged statutes are, on their face, unconstitutional. See McManus, 152 Wis.  2d at 129.
Constitutional Challenge to Statute, Overbreadth
State v. Charles Chvala, 2004 WI App 53, PFR granted
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding:
¶23. An overbreadth challenge to a statute invokes the protections of the First Amendment to the United States Constitution. See generally State v. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90. Invalidation of a statute on overbreadth grounds is "strong medicine" that is "employed by the Court sparingly and only as a last resort." State v. Janssen, 219 Wis. 2d 362, 373, 580 N.W.2d 260 (1998), quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). "A statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate." Janssen, 219 Wis. 2d at 374 (citation omitted). The overbreadth doctrine is grounded in the right to substantive due process and "has the effect of preventing the limiting, by indirection, of constitutional rights." Tronca, 84 Wis. 2d at 89 (citation omitted).
Constitutional Challenge to Statute, Separation of Powers
State v. Charles Chvala, 2004 WI App 53, affirmed, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding:
¶44. Whether a statute violates the doctrine of separation of powers presents a question of law. Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691 (1998). "The doctrine of separation of powers, while not explicitly set forth in the Wisconsin constitution, is implicit in the division of governmental powers among the judicial, legislative and executive branches." State ex rel. Friedrich v. Dane County Circuit Court, 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). "The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another." State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). "Each branch has a core zone of exclusive authority into which the other branches may not intrude." State ex rel. Friedrich, 192 Wis. 2d at 13. In these core areas, "any exercise of authority by another branch of government is unconstitutional." Barland, 216 Wis. 2d at 573-74 (citation omitted).

¶45. However, the majority of governmental powers lie within areas of shared authority, where the powers of the branches overlap. Id. at 573. "In these areas of `shared power,' one branch of government may exercise power conferred on another only to an extent that does not unduly burden or substantially interfere with the other branch's exercise of power." Id.

Constitutional Challenge to Statute, Vagueness
State v. Charles Chvala, 2004 WI App 53, affirmed on other grounds, 2005 WI 30
For Chvala: James A. Olson, et. al,  Lawton & Cates
Issue/Holding:
¶9. We review the constitutionality of statutes de novo, without deference to the trial court. State v. Bertrand, 162 Wis. 2d 411, 415, 469 N.W.2d 873 (Ct. App. 1991). Statutes enjoy a presumption of constitutionality and we review the statutes so as to preserve their constitutionality. Id. A party challenging the constitutionality of a statute must demonstrate that it is unconstitutional beyond a reasonable doubt. State v. Pittman, 174 Wis. 2d 255, 276, 496 N.W.2d 74 (1993).

¶10. Whether a statute is unconstitutionally vague as applied is a question of law. Pittman, 174 Wis. 2d at 276. A vagueness challenge must satisfy a two-prong test:

The first prong of the vagueness test is concerned with whether the statute sufficiently warns a person `wishing to obey the law that [their] ... conduct comes near the proscribed area.' The second prong is concerned with whether those who must enforce and apply the law may do so without creating or applying their own standards.
Id. (citations omitted). A statute is not unconstitutionally vague "simply because in some particular instance some type of conduct may create a question about its impact under the statute." State v. Smith, 215 Wis. 2d 84, 91-92, 572 N.W.2d 496 (Ct. App. 1997) (citation omitted).
The ambiguity must be such that 'one bent on obedience may not discern when the region of proscribed conduct is neared, or such that the trier of fact in ascertaining guilt or innocence is relegated to creating and applying its own standards of culpability rather than applying standards prescribed in the statute or rule.'
Pittman, 174 Wis. 2d at 277 (citation omitted). A person whose conduct intentionally comes close to "an area of proscribed conduct" assumes the risk that his conduct may fall into the area of proscribed conduct. State v. Courtney, 74 Wis. 2d 705, 711, 247 N.W.2d 714 (1976) (citations omitted). A criminal statute is not vague if "by the ordinary process of construction, a practical or sensible meaning may be given to the ... [law] ...." State v. Arnold, 217 Wis. 340, 345, 259 N.W. 843 (1935).
Constitutional Challenge to Statute
State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶11. The constitutionality of a statute is a question of law that this court determines independently of the circuit court and court of appeals, yet with the benefit of the analyses of these courts. All statutes enjoy a presumption of constitutionality and the heavy burden of overcoming this presumption lies with the person attacking the statute. This court will sustain a statute against a constitutional challenge if there is "any reasonable basis" for the statute. That reasonable basis need not be expressly stated by the legislature; if the court can conceive of facts on which the legislation could reasonably be based, it must uphold the legislation as constitutional.
Constitutional Challenge to Statute
State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision
For Trochinski: James L. Fullin, SPD, Madison Appellate
On-line Brief (COA): http://www.wisspd.org/html/appellate/briefbank/briefs/002545.pdf
Issue/Holding:
¶33. We now turn to Trochinski's facial constitutional challenge to Wis. Stat. § 948.11(2). The constitutionality of a statute presents a question of law that we review independently, benefiting from the analyses of the circuit court and the court of appeals. State v. Weidner, 2000 WI 52, ¶7, 235 Wis. 2d 306, 611 N.W.2d 684. 'Statutes generally enjoy a presumption of constitutionality that the challenger must refute.' Id. (citing Wis. Retired Teacher's Ass'n v. Employe Trust Funds Bd., 207 Wis. 2d 1, 18, 558 N.W.2d 83 (1997). When a statute infringes on First Amendment rights, however, the State bears the burden of proving the statute constitutional beyond a reasonable doubt. Weidner, 2000 WI 52, ¶7; City of Madison v. Baumann, 162 Wis. 2d 660, 669, 470 N.W.2d 296 (1991).
Substantive Due Process, "Fundamental Liberty Interest"
Monroe Co. DHS v. Kelli B., 2004 WI 8, affirming 2003 WI App 88, 263 Wis. 2d 413, 662 N.W.2d 360
For Kelli B.: Timothy A. Provis
Issue/Holding:
¶16 In this case we address whether Wis. Stat. § 48.415(7), as applied, violates the constitutional right to substantive due process. Such an issue presents a question of law subject to independent appellate review. See State v. Allen M., 214 Wis. 2d 302, 313, 571 N.W.2d 872 (Ct. App. 1997). We begin with the presumption that the statute is constitutional and resolve any doubt in upholding its constitutionality. See id.

¶17 Here the parties disagree as to whether the termination of Kelli's parental rights implicates a fundamental liberty interest. If it does, we review the question while employing a standard of strict scrutiny. Winnebago County DSS v. Darrel A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995). This requires the County to show that the statute, as applied, is narrowly tailored to advance a compelling interest that justifies interference with Kelli's fundamental liberty interest. See id. If a fundamental liberty interest is not implicated, then we need only review the termination of Kelli's parental rights under the standard of rational basis. See Allen M., 214 Wis. 2d at 314, n. 12. This is satisfied if the legislative enactment bears a rational relation to some legitimate end. State [sic: State ex rel. Schatz] v. McCaughtry, 2003 WI 80, 41, 263 Wis. 2d 83, 664 N.W.2d 596.

Constitutional Issue
Predick v. O'Connor, 2003 WI App 46
Issue/Holding:
¶10. This appeal requires us to apply a two-part standard of review. Whether the trial court's orders violated Margaret's constitutional rights is a question of law. We review questions of law without deference to the decisions of the lower court. Ball v. Dist. No. 4, Area Bd. of Vocational, Technical and Adult Educ., 117 Wis. 2d 529, 537, 345 N.W.2d 389 (1984). However, we will not overturn the trial court's findings of fact in either of the proceedings unless they are clearly erroneous. See Wis. Stat. §Ê805.17(2).

Standard of Review -- Counsel

Counsel, Waiver of Right to
State v. Alan J. Ernst, 2005 WI 107, on certification
For Ernst: Jeffrey W. Jensen
Issue/Holding:
            ¶10      Whether a defendant knowingly, intelligently, and voluntarily waived his Sixth Amendment right to counsel requires the application of constitutional principles to the facts. See Klessig, 211 Wis.  2d at 204; see also State v. Woods, 117 Wis.  2d 701, 715-16, 345 N.W.2d 457 (1984). We review such a question de novo, independently of the reasoning of the circuit court.  Klessig, 211 Wis.  2d at 204. We benefit, however, from that court's analysis.  Whether a party has met the burden of establishing a prima facie case presents a question of law which we review de novo. See State v. Baker , 169 Wis.  2d 49, 78, 485 N.W.2d 237 (1992).
Counsel, Assertion of Right to
State v. Richard K. Fischer, 2003 WI App 5, PFR filed 1/15/03
For Fischer: Mark S. Rosen
Issue/Holding:
¶12. The first issue before us concerns the sufficiency of Fischer's invocation of the right to counsel. This is a question of constitutional fact that we review under a two-part standard. State v. Jennings, 2002 WI 44, 20, 252 Wis. 2d 228, 647 N.W.2d 142. We must uphold the trial court's findings of historical or evidentiary fact unless they are clearly erroneous. Id. However, we independently review the trial court's application of constitutional principles to those facts. Id. The legal sufficiency of a defendant's invocation of the right to counsel is determined by the application of a constitutional standard to historical facts. Id. at 25.
Counsel, Disqualification
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen
Issue/Holding:
¶8. We first address Tkacz's claim that the trial court erred when it failed to disqualify Jones based on the alleged conflict of interest. Tkacz asserts that the trial court erred by using the "substantial relationship" test to determine the issue. Whether the trial court used the proper standard is a question of law that we review independently of the trial court. See Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. However, the trial court's decision of whether attorney disqualification is required in a particular case is an exercise of discretion and the scope of our review is limited accordingly. Burkes v. Hales, 165 Wis. 2d 585, 590, 478 N.W.2d 37 (Ct. App. 1991). Generally, we will not find that the trial court's exercise of discretion was erroneous if the record shows that discretion was in fact exercised and we can perceive a reasonable basis for the trial court's decision. Jesse v. Danforth, 169 Wis. 2d 229, 245-46, 485 N.W.2d 63 (1992).
Standard of Review – Ineffective Assistance of Counsel, Conflict of Interest
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding:
¶10 Dion contends that the trial court erroneously exercised its discretion by accepting his conflict of interest waiver, thus allowing Attorney Berk to remain as his counsel. We review a trial court’s disqualification decision because of conflict of interest for erroneous exercise of discretion. See State v. Miller, 160 Wis. 2d 646, 654, 467 N.W.2d 118 (1991); see< also Wheat v. United States, 486 U.S. 153, 163 (1988) (holding that trial courts have wide latitude when deciding whether to reject a waiver of conflict free representation when an actual or potential conflict exists). We will not hold that the trial court erroneously exercised its discretion if the record demonstrates that the trial court in fact exercised discretion and there is a reasonable basis for its conclusion. State v. Tkacz, 2002 WI App 281, ¶8, 258 Wis. 2d 611, 654 N.W.2d 37.
Counsel: Ineffective Assistance
State v. George Melvin Taylor , 2004 WI App 81, PFR filed 4/13/04
For Taylor: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13. Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the defendant was prejudiced as a result of this deficient conduct. See id. at 687; see also State v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985). To prove deficient performance, the defendant must identify specific acts or omissions of counsel that fall "outside the wide range of professionally competent assistance." See Strickland, 466 U.S. at 690. To show prejudice, the defendant must demonstrate that the errors were so serious that the result of the proceeding was unreliable. Id. at 687.

¶14. Both prongs of the Strickland test involve mixed questions of law and fact. Pitsch, 124 Wis. 2d at 633-34. We will not disturb the trial court's findings of fact unless they are clearly erroneous. Id. at 634. However, "[t]he questions of whether counsel's behavior was deficient and whether it was prejudicial to the defendant are questions of law, and we do not give deference to the decision of the [trial] court." Id. Finally, it is of consequence to note that if the defendant fails to meet either prong-deficient performance or prejudice-the ineffective assistance of counsel claim fails. Strickland, 466 U.S. at 697.

Counsel: Ineffective Assistance
State v. Richard G. White, 2004 WI App 78, (AG’s) PFR filed 4/1/04
For White: James A. Rebholz
Issue/Holding:
¶11. Our review of a trial court's resolution of an ineffective-assistance-of-counsel claim presents mixed questions of law and fact. Johnson, 153 Wis. 2d at 127, 449 N.W.2d at 848. The trial court's findings of fact will not be disturbed unless they are clearly erroneous. Ibid. Whether the lawyer's performance was deficient and prejudicial are questions of law that we review de novo. Id., 153 Wis. 2d at 128, 449 N.W.2d at 848. We give special scrutiny to a defendant's claim that he or she was prejudiced by what the lawyer did or did not do when the case is close. State v. Smith, 2003 WI App 234, ¶22, ___ Wis. 2d ___, ___, 671 N.W.2d 854, 859.
Counsel: Ineffective Assistance -- General
State v. Timothy M. Ziebart, 2003 WI App 258
For Ziebart: Robert R. Henak
Issue/Holding:
¶14. The standards governing claims of ineffective assistance of counsel have been repeated many times and need not be detailed here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). Suffice it to say, however, that a defendant claiming ineffective assistance must establish both deficient performance and prejudice, see id., and a claim predicated on a failure to challenge a correct trial court ruling cannot establish either. See State v. Wheat, 2002 WI App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (counsel's failure to present legal challenge is not deficient performance if challenge would have been rejected); State v. Jackson, 229 Wis. 2d 328, 344, 600 N.W.2d 39 (Ct. App. 1999) (counsel's failure to present legal challenge is not prejudicial if defendant cannot establish challenge would have succeeded).

¶15. Similarly, because a defendant claiming ineffective assistance of postconviction counsel must establish postconviction counsel's failure to challenge trial counsel's performance, no such claim can succeed if predicated upon trial counsel's failure to challenge a correct trial court ruling. See State ex rel. Flores v. State, 183 Wis. 2d 587, 618-20, 516 N.W.2d 362 (1994). Thus, to establish that postconviction or appellate counsel was ineffective, a defendant bears the burden of proving that trial counsel's performance was deficient and prejudicial. See State v. Sanchez, 201 Wis. 2d 219, 232-36, 548 N.W.2d 69 (1996).

...

¶17. Whether trial counsel's performance was deficient and, if so, whether it was prejudicial are legal issues also subject to our de novo review. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985)....

Counsel -- Ineffective Assistance -- Deference to Trial Court
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen
Issue/Holding:
¶22. Thiel asks this court to modify the foregoing standard of review and, as a matter of policy, announce a rule that appellate courts accord some degree of deference to a trial judge's assessment of counsel's deficient performance and the prejudicial effect of counsel's errors. He reasons that trial judges have a unique vantage point on these issues, having heard all the evidence and observed the conduct and demeanor of the witnesses, counsel, and members of the jury--both at trial and at the postconviction hearing.

¶23. We decline this invitation. Since the Strickland decision, this court has consistently held that "[t]he ultimate determination of whether counsel's performance was deficient and prejudicial to the defense are questions of law which this court reviews independently." State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990) (citing State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985)); see also Trawitzki, 244 Wis. 2d 523, ¶19. To the extent that a trial judge wishes to introduce into the record factual determinations that require consideration on appeal--such as assessments of credibility and demeanor--the judge should articulate these findings of fact in his or her decision. On review, appellate courts must be sensitive to these findings and not exclude them, either expressly or impliedly, from an analysis of deficiency and prejudice, unless they are clearly erroneous.

¶24. In our review of Thiel's claim of ineffective assistance of counsel, we grant deference only to the circuit court's findings of historical fact. We review de novo the legal questions of whether deficient performance has been established and whether it led to prejudice rising to a level undermining the reliability of the proceeding.

Counsel -- Ineffective Assistance
State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center
Issue/Holding:
¶13 To prevail on a claim of ineffective assistance of counsel, a defendant must establish that his trial counsel’s performance was deficient and that this performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether trial counsel’s actions constitute ineffective assistance presents a mixed question of law and fact. See State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985). We will not reverse the trial court’s factual findings regarding counsel’s actions at trial unless those findings are clearly erroneous. See id. at 634.

¶14 Whether trial counsel’s performance was deficient and whether that behavior prejudiced the defense, however, are questions of law which we review de novo. See id. In analyzing an ineffective assistance claim, this court may choose to address either the “deficient performance” component or the “prejudice” component first. See Strickland, 466 U.S. at 697. If we determine that the defendant has made an inadequate showing on either component, we need not address the other. See id.

Counsel -- Sanctions Against
Patricia O’Neil and Office of State Public Defender v Monroe County Circuit Court, 2003 WI App 140
For O’Neil: Tracey Lencioni, SPD, Office of Legal Counsel
On-line Briefs: (brief-in-chief); (reply brief)
Issue/Holding:
¶13. The trial court has inherent authority to assess the cost of impaneling a jury against a party. State v. Foster, 100 Wis. 2d 103, 109, 301 N.W.2d 192 (1981). “The purpose of imposing jury costs is to deter disruptive practices that contribute to inefficiency in the court system.” House v. Circuit Court for Marinette County, 112 Wis. 2d 14, 17, 331 N.W.2d 859 (Ct. App. 1983). The trial court is not limited to imposing costs on parties, but may sanction an attorney whose conduct “negligently disrupts the court's orderly administration of justice.” Id. We review the trial court's order assessing costs for an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1, 9, 578 N.W.2d 633 (1998). The trial court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law and, using a demonstrated rational process, reaches a conclusion that a reasonable court could reach. Id.

¶16. The trial court correctly concluded that bad faith on the part of an attorney was not a prerequisite to imposing jury costs, because the order and efficiency of the court system is as easily disrupted by negligent conduct as by bad faith conduct. Id. at 16-17. However, it is also important that each case be considered “in the light of the particular facts and circumstances.” Jacobson v. Avestruz, 81 Wis. 2d 240, 247, 260 N.W.2d 267 (1977).

Counsel -- Waiver, 6th Amendment
State v. Christopher D. Anson, 2002 WI App 270; subsequent history: 2005 WI 96
For Anson: Steven J. Watson
Issue/Holding:
¶8. This appeal involves the application of facts to federal constitutional principles. We review the trial court's application of constitutional principles to historical facts de novo. State v. Hornung, 229 Wis. 2d 469, 475, 600 N.W.2d 264 (Ct. App. 1999). However, historical factual determinations made by the trial court will be affirmed unless clearly erroneous. Id. at 475-76.
Counsel, Right to -- Violation of -- Taint
State v. Christopher Anson, 2005 WI 96, reversing in part, affirming in part, 2004 WI App 155
For Anson: Stephen J. Watson
Issue/Holding:
¶18 The question of whether evidence is the fruit of a prior constitutional violation or whether "the evidence was sufficiently attenuated so as to be purged of the taint" is one of constitutional fact. State v. Hajicek, 2001 WI 3, ¶25 n.7, 240 Wis. 2d 349, 620 N.W.2d 781 (citing State v. Anderson, 165 Wis. 2d 441, 447-48, 477 N.W.2d 277 (1991)). "When we review a question of constitutional fact, we adopt the circuit court's findings of historical fact, unless they are clearly erroneous, but we independently apply those facts to the constitutional standard." State v. Tomlinson, 2002 WI 91, ¶39, 254 Wis. 2d 502, 648 N.W.2d 367.
Counsel, Right to
State v. Louis J. Thornton, 2002 WI App 294
Issue/Holding:
¶11. Whether Thornton was wrongly deprived of his constitutional right to counsel is a question of constitutional fact which we review de novo. See State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 647-48, 579 N.W.2d 698 (1998). Questions of "constitutional fact" are not actually "facts" in themselves, but are questions which require the "'application of constitutional principles to the facts as found.'" See State v. Woods, 117 Wis. 2d 701, 715, 345 N.W.2d 457 (1984) (citation omitted). The facts relating to Thornton's claim that he was wrongfully denied counsel during postconviction proceedings are not disputed, leaving only the legal question of whether his constitutional rights were violated.

Standard of Review -- Detainers

Standard of Review - Detainers, Generally
State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate
Issue/Holding:
¶7        Standard of Review. The resolution of this appeal requires us to interpret the IAD, Wis. Stat. § 976.05, which is a question of law that we review without deference to the circuit court. State v. Blackburn, 214 Wis. 2d 372, 378, 571 N.W.2d 695 (Ct. App. 1997). Our goal in statutory interpretation is to determine and carry out the intent of the legislature. Id. The IAD is a remedial statute and we will construe it liberally in favor of a prisoner. 2 Michael B. Mushlin, Rights of Prisoners § 10.21, at 384 (3d ed. 2002).

Standard of Review -- Discovery

Standard of Review: Discovery – Protective Order, § 971.23(6)
State v. Ronald W. Bowser, 2009 WI App 114
For Bowser: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶9        A circuit court’s decision whether to grant a motion for a protective order under Wis. Stat. § 971.23(6) is reviewed under the erroneous exercise of discretion standard. See State v. Beloit Concrete Stone Co., 103 Wis.  2d 506, 511, 309 N.W.2d 28 (Ct. App. 1981). A proper exercise of discretion requires that the court rest its decision on the relevant facts, apply the proper standard of law, and arrive at a reasonable conclusion using a demonstrated rational process. Hegarty v. Beauchaine, 2006 WI App 248, ¶37, 297 Wis.  2d 70, 727 N.W.2d 857.

¶10      Good cause must be established before a protective order may be issued pursuant to Wis. Stat. § 971.23(6). The burden for establishing good cause lies with the party seeking a protective order under the statute. See § 971.23(6); cf. Boyd, 159 P.3d at 59.

Standard of Review: Discovery
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding:
¶15      Standard of Review. The interpretation and application of Wis. Stat. § 971.23(1)(e) and (h) to a given set of facts, as in the instant case, presents a question of law that we review independently of the circuit court and court of appeals but benefiting from their analyses. [4] If this court concludes that the State violated its statutory discovery obligation, this court must then determine whether the State has shown good cause for the violation and, if not, whether the defendant was prejudiced by the evidence or testimony. [5] These issues are also questions of law for this court to review independently of the circuit court and court of appeals but benefiting from their analyses. [6]
Discovery Violation
State v. Paul T. Rice, 2008 WI App 10
For Rice: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶14   We analyze alleged discovery violations in three steps, each of which poses a question of law reviewed without deference. State v. DeLao, 2002 WI 49, ¶¶14-15, 252 Wis. 2d 289, 643 N.W.2d 480. First, we decide whether the State failed to disclose information it was required to disclose under Wis. Stat. § 971.23(1). Next, we decide whether the State had good cause for any failure to disclose under § 971.23(1). Id., ¶15. Absent good cause, the undisclosed evidence must be excluded. However, if good cause exists, the circuit court may admit the evidence and grant other relief, such as a continuance. Id., ¶51; Wis. Stat. § 971.23(7m). Finally, if evidence should have been excluded under the first two steps, we decide whether admission of the evidence was harmless. DeLao, 252 Wis. 2d 289, ¶59.
Discovery Violation
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding:
¶10. Wisconsin Stat. § 971.23(7) requires the trial court to exclude evidence that is not produced pursuant to a discovery demand unless 'good cause is shown for failure to comply.' State v. Martinez, 166 Wis. 2d 250, 257, 479 N.W.2d 224 (Ct. App. 1991). Whether a party has satisfied its burden is a question of law that we review without giving deference to the trial court's conclusion. Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis. 2d 804, 811, 416 N.W.2d 906 (Ct. App. 1987).

Standard of Review -- Double Jeopardy

Double Jeopardy -- "Manifest Necessity" for Mistrial Over Defense Objection
State v. Otis G. Mattox, 2006 WI App 110

For Mattox: Scott D. Obernberger
Issue/Holding:
¶10      Mattox submits that the trial court erroneously exercised its discretion when, sua sponte, it declared a mistrial.
The trial court’s exercise of discretion in making this sua sponte determination is ordinarily entitled to considerable deference on review by an appellate court. Gori v. United States, 367 U.S. 364 (1961). This is because the unusual prejudicial development resulting in mistrial is of a type whose effect is best assessed by the trial court’s first-hand observation. It is appropriately left to the exercise of trial court discretion; and on review the test is whether, under all the facts and circumstances, giving deference to the trial court’s first-hand knowledge, it was reasonable to grant a mistrial under the “manifest necessity” rule.
State v. Copening , 100 Wis. 2d 700, 303 N.W.2d 821 (1981).

...

¶13      The doctrine of manifest necessity was established in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), where the court held that a trial court could declare a mistrial when “taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” Id. at 580 (quoted by State v. Barthels, 174 Wis. 2d 173, 183, 495 N.W.2d 341 (1993); Copening, 100 Wis. 2d at 709). This tool should only be used “with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” Id. A court must find a “high degree” of necessity before concluding that a mistrial is appropriate. Washington, 434 U.S. at 506.

Double Jeopardy -- "Manifest Necessity" for Mistrial Over Defense Objection
State v. Barbara E. Harp, 2005 WI App 250
For Harp: Aaron N. Halstead, Kathleen Meter Lounsbury, Danielle L. Carne
Issue/Holding:
¶10      Generally, the level of deference we afford a circuit court’s decision to grant a mistrial depends upon the circumstances of the case. Seefeldt, 261 Wis.  2d 383, ¶¶25-28. In Arizona v. Washington, 434 U.S. 497, 507-10, 98 S. Ct. 824 (1978), the U.S. Supreme Court described “two ends of the spectrum of deference.” Seefeldt, 261 Wis. 2d 383, ¶25. At one end are cases in which there is reason to believe that the prosecutor has sought a mistrial to gain a tactical advantage or to harass the defendant. Washington, 434 U.S. at 507-08.  On the other is the mistrial based on the judge’s belief that the jury is unable to reach a verdict. Id. at 509. A mistrial premised on the latter circumstance is “accorded great deference by a reviewing court,” id. at 510, whereas a mistrial resulting from the former is subject to the “strictest scrutiny.” Id. at 508. In any case, a court reviewing a circuit court’s order of a mistrial must, at a minimum, “satisfy itself that the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Seefeldt, 261 Wis. 2d 383, ¶28.  

¶12      We need not address the parties’ dispute about the level of deference demanded by the particular circumstances because no matter the standard of review, our result would be the same. Our analysis below concludes that the circuit court’s mistrial order was based on an error of law, and thus the court’s order was not an exercise of “sound discretion.” Seefeldt, 261 Wis. 2d 383, ¶28.

The trial court’s error was in deeming certain testimony to be in the nature of an “alibi” and thus in violation of the notice-of-alibi requirement; because the testimony was not, as a matter of law, alibi-related, no such violation occurred and the mistrial wasn’t manifestly necessary, ¶¶21-25.
Double Jeopardy / Multiplicity
State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04
For Beasley: Robert Ruth
Issue/Holding:
¶6. We review double jeopardy and multiplicity challenges without deference to the circuit court. See State v. Multaler, 2002 WI 35, ¶52, 252 Wis. 2d 54, 643 N.W.2d 437; State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).

...

¶10. Thus, Davison sets forth the following analysis. If charged offenses are identical in law and fact using the Blockburger test, there is a presumption that the legislature did not intend multiple punishments. This presumption is only overcome by a clear indication of contrary legislative intent. On the other hand, if charged offenses are not identical in law and fact using the Blockburger test, there is no potential double jeopardy problem, but there may be a due process problem if the legislature did not intend to authorize cumulative punishments. In this second situation, there is a presumption that the legislature intended to permit cumulative punishments, and the defendant has the burden of overcoming this presumption by showing a clear legislative intent that cumulative punishments are not authorized. The defendant must meet that burden in light of four factors: (1) all applicable statutory language; (2) legislative history and context of the statute; (3) the nature of the proscribed conduct; and (4) the appropriateness of multiple punishment.

Double Jeopardy: "Manifest Necessity" for Mistrial over Defense Objection
State v. Clyde Baily Williams, 2004 WI App 56, PFR filed 3/11
For Williams: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶24. A defendant's right to have his or her trial concluded by a particular tribunal can be, under certain circumstances, subordinated to the public interest in affording the State one full and fair opportunity to present its evidence to an impartial jury. Id., ¶19. Nevertheless, given the importance of the constitutional protection against double jeopardy, the State bears the burden of demonstrating a "manifest necessity" for any mistrial ordered over the objection of the defendant. Id. If a trial is terminated without manifest necessity and over the defendant's objection, the State is not permitted to commence a second trial against the defendant. Id. "Manifest necessity" means a "high degree" of necessity. Id.

¶28. The circumstances in this case are akin to those in Washington. Here, the trial court ordered a mistrial after Williams' counsel asked what it believed to be an improper question of a witness. We can discern no distinction between conveying the possibly prejudicial information via an opening statement and conveying it via a question of a witness on cross-examination. The same risk of jury bias attends. As Washington teaches, the trial judge is in the best position to evaluate the significance of that risk and must be given the discretion to determine what actions need to be taken to necessarily remove the risk of bias that may be created by the prejudicial information. We therefore conclude that the trial judge's decision to declare a mistrial based on his or her assessment of the prejudicial impact of the improper question is entitled to great deference.

¶29. As we recognized earlier, a determination that the trial judge's mistrial order is entitled to great deference does not end the inquiry. Seefeldt, 261 Wis. 2d 383, ¶35. More is needed. Considering the double jeopardy interests, the reviewing court must still satisfy itself that the trial judge exercised "sound discretion" in concluding that the State satisfied its burden of showing a "manifest necessity" for the mistrial. Id.

Double Jeopardy: "Manifest Necessity" for Mistrial over Defense Objection
State v. Richard A. Moeck, 2005 WI 57, affirming 2004 WI App 47
For Moeck: David D. Cook
Issue/Holding:
¶41 The level of deference we accord a circuit court's order for a mistrial depends on the particular facts of each case. There is a spectrum of deference to a circuit court's exercise of its discretion in granting a mistrial. In cases like the present one, in which a mistrial was ordered on the basis of defense counsel's opening statement, a circuit court's determination "is entitled to special respect."

¶42 The conclusion that a circuit court's exercise of discretion is entitled to special respect does not end the inquiry. Because of the constitutional implications of double jeopardy, an appellate court must satisfy itself that a circuit court exercised "sound discretion" in declaring a mistrial.

¶43 This court has articulated various considerations that factor into determining whether a court exercised sound discretion. We have described sound discretion as "acting in a rational and responsible manner." Sound discretion further includes "acting in a deliberate manner taking sufficient time in responding to a prosecutor's request for a mistrial." Sound discretion requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel. Sound discretion also requires that a circuit court ensure that the record reflects that there is an adequate basis for a finding of manifest necessity. Finally, "[s]ound discretion is not exercised when the circuit court fails to consider the facts of record under the relevant law, bases its conclusion on an error of law or does not reason its way to a rational conclusion."

Double Jeopardy: "Manifest Necessity" for Mistrial over Defense Objection
State v. Brian D. Seefeldt, 2003 WI 47, affirming 2002 WI App 149
For Seefeldt: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶35. As recognized in Washington, a determination that the trial judge's mistrial order is entitled to great deference does not end the inquiry. Washington, 434 U.S. at 514. More is needed. Considering the double jeopardy interests, the reviewing court must still satisfy itself that the trial judge exercised "sound discretion" in concluding that the State satisfied its burden of showing a "manifest necessity" for the mistrial.

¶36. Sound discretion means acting in a rational and responsible manner. Sound discretion includes, without limitation, acting in a deliberate manner taking sufficient time in responding to a prosecutor's request for a mistrial. It requires giving both parties a full opportunity to explain their positions and considering alternatives such as a curative instruction or sanctioning counsel. Sound discretion is not exercised when the circuit court fails to consider the facts of record under the relevant law, bases its conclusion on an error of law or does not reason its way to a rational conclusion. See State v. Davis, 2001 WI 136, 28, 248 Wis. 2d 986, 637 N.W.2d 62.

¶37. Sound discretion also requires that the trial judge ensure that the record reflects there is an adequate basis for a finding of manifest necessity. As such, sound discretion is more than a review to ensure the absence of a mistake of law or fact. Rather, a review for sound discretion encompasses an assurance that an adequate basis for the finding of manifest necessity is on the record.

(Prior caselaw intimation, State v. Barthels, 174 Wis. 2d 173, 495 N.W.2d 341 (1993), that “strict scrutiny” is required “in all cases in which the prosecutor requests a mistrial,” is disavowed as “clearly overbroad and inconsistent with the approach set forth in Washington.” ¶33. Instead, the appropriate test falls along a “spectrum,” depending on the circumstances, from “great deference” to the order granting mistrial to “strict scrutiny.” ¶¶34.)

Standard of Review -- Evidence

Evidence -- Admissibility -- Expert Opinion
State v. Forest S. Shomberg, 2006 WI 9, affirming unpublished decision
For Shomberg: Charles W. Giesen; Morris D. Berman
Issue/Holding:
¶10 "The admissibility of expert opinion testimony lies in the discretion of the circuit court." State v. St. George, 2002 WI 50, ¶37, 252 Wis. 2d 499, 643 N.W.2d 777 (citing Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698; State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999)). "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale, 246 Wis. 2d 67, ¶28 (citations omitted). We apply the erroneous exercise of discretion standard to both evidentiary issues in this case.

¶11 The inquiry into a circuit court's exercise of "discretion in making an evidentiary ruling is highly deferential. . . ." Id., ¶29. As we have previously stated:

The question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record. The test is not whether this court agrees with the ruling of the trial court, but whether appropriate discretion was in fact exercised.
Id. (citations omitted).

"We will not find an erroneous exercise of discretion if there is a rational basis for a circuit court's decision." Id. (citations omitted).

Evidence -- Admissibility -- Bench Trial
State v. Leonard A. Sarnowski, 2005 WI App 48
For Sarnowski: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding:
¶12. Verdicts, whether rendered by juries or judges, must either be based on the evidence properly admitted at the trial, or matters for which judicial notice may be taken. Although there is some evidentiary leeway in trials to the court, bench-trial judges may not use inadmissible evidence to decide a "critical issue." McCoy v. May, 255 Wis. 20, 25, 38 N.W.2d 15, 17 (1949). Both juries and judges may, of course, draw logical inferences from the evidence, connecting its dots into a coherent pattern. De Keuster v. Green Bay & W. R.R. Co., 264 Wis. 476, 479, 59 N.W.2d 452, 454 (1953).
Evidence -- Admissibility -- Defendant's Testimony -- Failure to Comply with Notice of Alibi
State v. Shon D. Brown, 2003 WI App 34, PFR filed 2/3/03
For Brown: Robert T. Ruth
Issue/Holding:
¶12. We first address whether trial court erred in excluding Brown's testimony for lack of a notice of alibi pursuant to Wis. Stat. § 971.23(8). We review the trial court's decision to exclude Brown's testimony under the erroneous exercise of discretion standard, and if it has a reasonable basis, we will not disturb it. State v. Guzman, 2001 WI App 54, ¶19, 241 Wis. 2d 310, 624 N.W.2d 717, review denied, 2001 WI 88, 246 Wis. 2d 166, 630 N.W.2d 219 (Wis. May 8, 2001) (No. 99-2249-CR). Brown asserts that the testimony he proposed to give was not an "alibi" within the meaning of § 971.23(8)(a), a claim which presents a question of statutory interpretation subject to our de novo review. See State v. Gribble, 2001 WI App 227, ¶¶26-27 n.10, 31, 248 Wis. 2d 409, 636 N.W.2d 488, review denied, 2002 WI 2, 249 Wis. 2d 580, 638 N.W.2d 589 (Wis. Dec. 17, 2001) (No. 00-1821-CR). If the trial court's discretionary decision to exclude Brown's proposed testimony was based on an error of law, the court acted "`beyond the limits of discretion.'" State v. Wyss, 124 Wis. 2d 681, 734, 370 N.W.2d 745 (1985) (citation omitted), overruled on other grounds by State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990).
Evidence -- Admissibility -- Personality Profile -- Richard A.P. Expert
State v. Steven G. Walters, 2004 WI 18, reversing 2003 WI App 24
For Walters: David A. Danz
Issue/Holding:
¶13. This case addresses a circuit court's evidentiary ruling that excluded expert testimony comparing the personality characteristics of the defendant with the personality characteristics of known sex offenders. We review a circuit court's decision to exclude such evidence under the erroneous exercise of discretion standard. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983).

¶14. An appellate court will uphold an evidentiary ruling if it concludes that the circuit court examined the relevant facts, applied a proper standard of law, used a demonstrated rational process, and reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982). Any question that arises in reviewing whether the circuit court applied a proper legal standard, however, presents a question of law subject to independent appellate review. City of Madison v. Wisconsin Dep't of Workforce Dev., 2003 WI 76, 10, 262 Wis. 2d 652, 664 N.W.2d 584.

Evidence -- Admissibility
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶35. The admission of evidence is within the discretion of the trial court. See State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). We review a trial court's ruling on the admissibility of evidence for an erroneous exercise of discretion. Id. To sustain a discretionary ruling, we need only find that the trial court examined the relevant facts, applied a proper standard of law and, using a rational process, reached a reasonable conclusion. Franz v. Brennan, 150 Wis. 2d 1, 6, 440 N.W.2d 562 (1989). "`In determining a dispute concerning the relevancy of proffered evidence, the question to be resolved is whether there is a logical or rational connection between the fact which is sought to be proved and a matter of fact which has been made an issue in the case.'" State v. Alsteen, 108 Wis. 2d 723, 729-30, 324 N.W.2d 426 (1982) (citation omitted). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of confusion of issues. Wis. Stat. § 904.03. With these standards in mind, we now examine each of the evidentiary challenges.
Evidence -- Admissibility
State v. Luther Williams, III, 2002 WI 58, on certification
For Williams: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶7. ... Although a circuit court's decision to admit evidence is ordinarily a matter for the court's discretion, whether the admission of evidence violates a defendant's right to confrontation is a question of law subject to independent appellate review. State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999).

¶8. In addition, we must determine whether the state crime lab report was admissible as a business record under the hearsay exception in § 908.03(6). When an evidentiary issue requires the construction of a statute, a question of law is presented for independent appellate review....

Evidence -- Admissibility: Hearsay
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School
Issue/Holding:

¶31      Regarding the admissibility of the alleged hearsay statements, this court reviews evidentiary rulings with deference to the circuit court as to whether it properly exercised its discretion, in accordance with the facts and accepted legal standards. State v. Tucker, 2003 WI 12, ¶28, 259 Wis. 2d 484, 657 N.W.2d 374. As with other discretionary determinations, this court will uphold a circuit court's decision to admit or exclude evidence if the circuit court examined the relevant facts, applied a proper legal standard, and reached a reasonable conclusion using a demonstrated rational process. State v. Muckerheide, 2007 WI 5, ¶17, ___ Wis. 2d ___, 725 N.W.2d 930.

Evidence -- Admissibility: Hearsay
State v. Antwan B. Manuel, 2005 WI 75, affirming 2004 WI App 111
For Manuel: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶24 A trial court's decision to admit evidence is discretionary, and this court will uphold that decision if there was a proper exercise of discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). When reviewing an evidentiary decision, "the question on appeal is not whether this court, ruling initially on the admissibility of the evidence, would have permitted it to come in, but whether the trial court exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record." State v. Stinson, 134 Wis. 2d 224, 232, 397 N.W.2d 136 (Ct. App. 1986). A proper exercise of discretion requires that the trial court rely on facts of record, the applicable law, and, using a demonstrable rational process, reach a reasonable decision. Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. If a trial court fails to adequately set forth its reasoning in reaching a discretionary decision, we will search the record for reasons to sustain that decision. McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971).
Evidence -- Admissibility: Hearsay
State v. Glenn H. Hale, 2003 WI App 238, affirmed on other grounds, 2005 WI 7
For Hale: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding:
¶12. A trial court's decision to admit a hearsay statement is a discretionary one, and we will not reverse the trial court's decision unless the record shows that the ruling was manifestly wrong and an erroneous exercise of discretion. State v. Ballos, 230 Wis. 2d 495, 504, 602 N.W.2d 117 (Ct. App. 1999). However, whether the admission of hearsay evidence under a statutory exception violates a criminal defendant's right to confront adverse witnesses under the Sixth Amendment to the United States Constitution and article I, section 7 of the Wisconsin Constitution presents a question of constitutional fact. State v. Tomlinson, 2002 WI 91, ¶39, 254 Wis. 2d 502, 648 N.W.2d 367. For such questions, we accept the trial court's findings of historical fact unless clearly erroneous, but independently apply the facts to the constitutional standard. Id
This standard of review is thoroughly entrenched. But when you stop and think about it, why should a hearsay determination be reviewed deferentially? See, e.g., State v. Cunningham, OR SCt No. SC S50010, 10/21/04:
... there is only one legally correct answer to the question whether a statement is admissible as an excited utterance. The trial court finds the facts that underlie the application of OEC 803(2), and those findings will not be disturbed if evidence in the record supports them. However, the ultimate legal issue -- whether the requirements of OEC 803(2) have been met and the hearsay statement is therefore admissible as an excited utterance -- is a question of law as to which there is only one legally correct outcome....
(The supreme court's affirmance in Hale did not disturb the quoted holding; rather, it simply ignored it. The court instead ruled that the challenged evidence violated the confrontation clause, but that the error was harmless. The established principle is that unless and until overruled by higher court, court of appeals' holdings remain viable. In any event, the quoted principle certainly seems uncontroversial.)
Evidence -- Admissibility: Hearsay/Confrontation
State v. Robert Bintz, 2002 WI App 204, PFR filed 8/8/02
For Bintz: Elizabeth A. Cavendish-Sosinski
Issue/Holding:
¶6. ... A trial court's decision to admit a hearsay statement is a discretionary one, and we will not reverse the trial court's decision "unless the record shows that the ruling was manifestly wrong and an [erroneous exercise] of discretion." State v. Moats, 156 Wis. 2d 74, 96, 457 N.W.2d 299 (1990). Whether the admission of hearsay violates a defendant's constitutional right of confrontation, however, is an issue subject to de novo review. State v. Webster, 156 Wis. 2d 510, 517-22, 458 N.W.2d 373 (Ct. App. 1990).

¶7. ... While the admission of any hearsay statement against a criminal defendant would appear to violate the literal terms of the (confrontation) clause, the United States Supreme Court has consistently held the clause does not always prohibit this practice. Idaho v. Wright, 497 U.S. 805, 812-13 (1990). In order for a hearsay statement to be admitted against a criminal defendant it must either (1) fall within a firmly rooted hearsay exception; or (2) contain particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980).

UPDATE: Roberts was subequently overruled, in Crawford v. Washington, 02-9410, 3/8/04 -- at least in relation to categorical (as opposed to case-by-case) exclusion of "testimonial" statements of witnesses who are unavailable at trial and not previously subject to cross-examination. But where hearsay doesn't come within the categorical exclusion of Crawford, the Roberts reliability test remains in effect, State v. Antwan D. Manuel, 2004 WI App 111, ¶¶23-27, PFR granted
Evidence -- Admissibility -- Inadequate Trial Court Reasoning -- Misconduct Evidence
State v. John P. Hunt, 2003 WI 81, reversing unpublished order of court of appeals
For Hunt: Rex R. Anderegg
Issue/Holding:
¶34. The applicable standard for reviewing a circuit court's admission of other-acts evidence is whether the court exercised appropriate discretion. State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498 (1983). An appellate court will sustain an evidentiary ruling if it finds that the circuit court examined the relevant facts, applied a proper standard of law, used a demonstrated rational process, and reached a conclusion that a reasonable judge could reach. Loy v. Bunderson, 107 Wis. 2d 400, 414-415, 320 N.W.2d 175 (1982) (citing McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971)). A circuit court's failure to delineate the factors that influenced its decision constitutes an erroneous exercise of discretion. See McCleary, 49 Wis. 2d at 282. When a circuit court fails to set forth its reasoning, it has been held that an appellate court independently should review the record to determine whether it provides an appropriate basis for the circuit court's decision. See Pharr, 115 Wis. 2d at 343.
Evidence -- Admissibility -- Inadequate Trial Court Reasoning
State v. Eugene P. Opalewski, 2002 WI App 145, PFR filed 6/6/02
For Opalewski: Lorinne J. Cunningham
Issue/Holding: The trial court's failure to adequately set forth its reasoning in support of evidentiary admissibility is an erroneous exercise of discretion, but rather than requiring reversal, the appellate court then must independently review the evidence to see if it supports the trial court's decision. ¶7.
Evidence -- Admissibility -- Prior Convictions for Impeachment, § 906.09
State v. Gary M.B., 2003 WI App 72, affirmed, 2004 WI 33
For Gary M.B.: T. Christopher Kelly
Issue/Holding:
¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that "a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted." State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995). The decision whether to admit prior conviction evidence for impeachment purposes under § 906.09 lies within the trial court's discretion. Id. at 525. We will uphold a trial court's discretionary decision if it correctly applied accepted legal standards to the facts of record and used a rational process to reach a reasonable conclusion, putting aside "whether we would have made the same ruling." Id.

¶25. The trial court allowed all five of Gary's convictions to be admitted based solely on its understanding that there is "a presumption in the statute ... [that] ... allows for prior convictions to be brought in because [they] do[] say something about the person's credibility." ...

¶26. Wisconsin Stat. § 906.09 does not end with the "general rule," however. Subsection (2) requires that a court also consider whether conviction evidence should be excluded because "its probative value is substantially outweighed by the danger of unfair prejudice." …

¶¶27. Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. See, e.g., State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). Had it done so, the court might have concluded that Gary's three twenty-five-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. Although we may independently review the record to determine whether the proper legal standard applied to the facts of record support the trial court's ruling, we decline to do so here. Because there were no evidentiary proceedings (and only very brief argument) on the issue in the trial court, the record provides no basis for us to conclude that, had the court applied the correct legal standard, it would have reached the same result.

NOTE: The supreme court's affirmance doesn't generate a majority of votes in favor of any distinct holding that could be seen as a reversal of the quoted holding -- the split is: 3 (plurality: all convictions are relevant to truthfulness) - 1 (concurrence: any error was harmless) - 3 (dissents: favoring reversible error). An argument may be made that the court of appeals' holding therefore remains viable. But an alternative possibility is presented. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) ("when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court's ultimate holding"). If you compare the lead opinion’s seeming bemusement at the idea that somehow impeachment with 5 priors was unfairly prejudicial when 2 concededly wasn’t (¶32) with the concurrence’s apparent belief that multiple priors don’t create additional prejudice, then the holding might be something like: when one prior is correctly admitted into evidence, additional priors simply don’t matter (not, at least, when there’s been a limiting instruction, as in this case).  

Evidence -- Chain of Custody Inspection
State v. Walter William McCoy, 2007 WI App 15
For McCoy: Andrea Taylor Cornwall
Issue/Holding:
¶8    The issue in this case is whether the State presented sufficient proof to establish a chain of custody. Our standard in reviewing this issue is discretionary.  State v. Simmons, 57 Wis. 2d 285, 295-96, 203 N.W.2d 887 (1973). Thus, we review whether the trial court considered the pertinent facts, applied the correct law, and reached a reasonable determination. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).

¶9    The law with respect to chain of custody issues requires proof sufficient “to render it improbable that the original item has been exchanged, contaminated or tampered with.” B.A.C. v. T.L.G., 135 Wis. 2d 280, 290, 400 N.W.2d 48 (Ct. App. 1986). WISCONSIN STAT. § 909.01 (2003-04) [2] provides: “The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” A perfect chain of custody is not required. United States v. Moore, 425 F.3d 1061, 1071 (7th Cir. 2005). Alleged gaps in a chain of custody “go to the weight of the evidence rather than its admissibility.”  United States v. Lott , 854 F.2d 244, 250 (7th Cir. 1988).

Evidence -- Confidential Material -- "Shiffra" In Camera Inspection
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding:
¶20. Green first alleges that the circuit court erred by failing to conduct an in camera review of N.W.'s counseling records. The defendant bears the burden of making a preliminary evidentiary showing before an in camera review is conducted by the court. Shiffra, 175 Wis. 2d at 605. Factual findings made by the court in its determination are reviewed under the clearly erroneous standard. Id. Whether the defendant submitted a preliminary evidentiary showing sufficient for an in camera review implicates a defendant's constitutional right to a fair trial and raises a question of law that we review de novo. State v. Ballos, 230 Wis. 2d 495, 500, 602 N.W.2d 117 (Ct. App. 1999); State v. Munoz, 200 Wis. 2d 391, 395, 546 N.W.2d 570 (Ct. App. 1996). If we determine the requisite showing was made, the defendant is not automatically entitled to a remand for an in camera review. The defendant still must show the error was not harmless. Ballos, 230 Wis. 2d at 501.
Evidence -- Confidential Material -- Juvenile Records, Release of
Courtney F. v. Ramiro M.C., 2004 WI App 36
For Ramiro: M.C.: Christine L. Hansen, SPD, Waukesha Trial
Issue/Holding:
¶11. The decision to issue an order for the release of juvenile or department records is left to the discretion of the juvenile court. Rock County Dep't of Soc. Servs. v. DeLeu, 143 Wis. 2d 508, 509-10, 422 N.W.2d 142 (Ct. App. 1988) (the juvenile court has discretion to determine if the confidential agency records should be disclosed or made available for inspection). A discretionary decision is one a reasonable court could reach by a consideration of the relevant law, the facts and a process of logical reasoning. State v. LaBine, 198 Wis. 2d 291, 306, 542 N.W.2d 797 (Ct. App. 1995). In order to be sustained, a court's discretion must be demonstrably based on the record and must rely on the appropriate and applicable law. Id. at 306-07.

¶12. In this case, the ultimate issue is whether the governing statutes required the juvenile court to conduct an in camera review of Ramiro's juvenile records prior to their release. This issue presents a question of law, which we review de novo. Teague v. Bad River Band, 2003 WI 118, 23, 265 Wis. 2d 64, 665 N.W.2d 899.

Evidence -- Cross-Examination
State v. Bernell Ross, 2003 WI App 27, PFR filed 2/21/03
For Ross: Andrew Mishlove
Issue/Holding:
¶43. Lastly, Ross contends the trial court erred by improperly limiting the cross-examination of his former attorney, Gundy. The extent and scope of cross- examination allowed for impeachment purposes is a matter within the sound discretion of the trial court. State v. McCall, 202 Wis. 2d 29, 35, 549 N.W.2d 418 (1996). We shall reverse a trial court's determination to limit or prohibit a certain area of cross-examination attempting to show bias only if the trial court's determination represents an erroneous exercise of discretion that is prejudicial. State v. Lindh, 161 Wis. 2d 324, 348-49, 468 N.W.2d 168 (1991). No erroneous exercise of discretion will be found if a reasonable basis exists for the trial court's determination. State v. Oberlander, 149 Wis. 2d 132, 141, 438 N.W.2d 580 (1989).
Evidence -- Documentary (Transcripts), Reliance on
State v. John D. Williams, 2002 WI 1, affirming 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164
For Williams: John A. Pray, Remington Center
Issue/Holding:
¶34. The circuit court in the present case did not, however, base its interpretation of the prosecutor's comments on its recollection of the sentencing hearing, which would have included memories of voice inflections, observed facial expressions, and pauses in the testimony. The post- conviction hearing was held seven months after the sentencing proceeding, and it is obvious from the record that the circuit court did not recollect the sentencing proceedings. Rather, the circuit court interpreted the prosecutor's comments by reading the written record of the plea and sentencing hearings.

¶35. The meaning of words in a document that is not dependent on a fact-finder's appraisal of the demeanor or credibility of a witness is a question of law to be determined independently by the reviewing court. Thus, the interpretation of the written transcript of the prosecutor's comments in the present case is a question of law to be determined independently by this court, not a question of fact to be given deference as the State asserts.

Evidence -- Documentary, Findings Based on
State v. Anthony J. Leitner, 2001 WI App 172, PFR granted 9/24/01
For Leitner: Jim Scott
Issue: Whether a trial court's findings of fact based on documentary evidence, as opposed to live witnesses, is entitled to deference.
Holding:
¶36. Finally, we note that the trial court's fact finding, even though based in part on disputed assertions in an affidavit, is accorded deference. Although there are broad pronouncements in prior cases indicating that fact finding based on documentary evidence is not accorded deference, it is clear that when parties effectively invite fact finding based on affidavits, thereby waiving the right to present live testimony, the resulting factual findings are accorded deference on appeal. See Connor, 2001 WI 49 at ¶31.
Evidence -- Exclusion
State v. Zebelum Smith, 2002 WI App 118, PFR filed 5/9/02
For Smith: Erich C. Straub
Issue/Holding: Generally, a trial court's determination to admit or exclude vidence is discretionary, and entitled to deference on review.  But where the focus is on the constitutional right to confrontation (such as here: refusal to allow introduction of a witness's prior inconsistent statements), the issue is one of constitutional fact, which leads to a two-step process of review: 1. deference to findings of historical fact, upheld unless clearly erroneous; 2. independent review of the constitutional question itself. ¶¶7-8.
Evidence -- Exclusion
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Ct. App. 1998).
For Richard: Robert Henak
Issue/Holding: After reviewing the complainant's mental health records, the trial court permitted introduction of certain matters into evidence, but did not go far enough to satisfy the defense, which argued on appeal that the trial court's ruling restricted confrontation, etc. The COA reviews the records independently, and affirms the trial court, without providing details, due to confidentiality concerns. But the court's fairly lengthy discussion of the standard of review is worth noting. The court of appeals and the supreme court have devised different standards of review. The former uses a "fact-law" test, which is more forgiving than the latter's "fact-discretion." In plain English: "fact-law" means that the trial court's findings of fact with respect to materiality of the mental health evidence are reviewed deferentially by the COA, for clear error. But the COA would then independently apply constitutional principles to those facts. "Fact-discretion" starts out the same, but then reviews those facts deferentially, for misuse of discretion - a much harsher test, since review of discretion by definition looks (not to says strains) to uphold the ruling. Since the COA is bound to follow supreme court precedent (and since US Supreme Court precedent doesn't require a contrary result), the fact-discretion standard holds sway. (COA further noting that its review must look "backward," and determine whether the records probably would have affected the outcome; while the trial court looks "forward," to determine materiality with respect to a trial yet to occur.")
Evidence -- Privilege -- Waiver
State v. Denis L.R., 2004 WI App 51, PFR granted
For Denis L.R.: Richard Hahn; Dwight D. Darrow
Issue/Holding:
¶12. The parties do not dispute that Dawn, as Kirstin's guardian, may invoke or waive the counselor-patient privilege on Kirstin's behalf. The question of whether Dawn waived the counselor-patient privilege under Wis. Stat. § 905.11 requires the application of a statute to undisputed facts that we review de novo. Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). In doing so, we are to ascertain and give effect to the legislature's intent. Id. We are also mindful that statutory privileges interfere with the trial court's search for the truth and are to be construed strictly and narrowly. Franzen v. Children's Hosp., 169 Wis. 2d 366, 386, 485 N.W.2d 603 (Ct. App. 1992).
Evidence -- Right to Present Defense
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue/Holding:
¶22      The right to present a defense is grounded in the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution [11] and includes the right to present the testimony of favorable witnesses. See State v. Pulizzano, 155 Wis. 2d 633, 645-46, 456 N.W.2d 325 (1990). Our determination of whether the State denied Kramer his right to present a defense is a question of constitutional fact that we determine independently of the circuit court. State v. Shomberg, 2006 WI 9, ¶26, ___ Wis. 2d ___, 709 N.W.2d 370.
Evidence -- Sufficiency
State v. Cleveland R. Tidwell, 2009 WI App 153, PFR filed 10/9/09
For Cleveland: Jeremy C. Perri, SPD, Milwaukee Appellate
Issue/Holding:
¶5    The issue on appeal is whether the State presented sufficient evidence for the jury to find Tidwell guilty of attempted theft from the person of another beyond a reasonable doubt. See Wis. Stat. § 939.32. The standard of review in sufficiency of the evidence cases is “whether the evidence, viewed in the light most favorable to the state, is so insufficient in probative value and force that as a matter of law no reasonable jury could have found guilt beyond a reasonable doubt.” State v. Poellinger, 153 Wis.  2d 493, 500, 451 N.W.2d 752 (1990). “If there is any possibility that the jury could have drawn the appropriate inferences from the evidence to support its verdict, we may not overturn that verdict even if we believe that the jury should not have found guilt based on the evidence.” State v. Graham, 2000 WI App 138, ¶6, 237 Wis.  2d 620, 614 N.W.2d 504 (citing Poellinger, 153 Wis. 2d at 507).
Evidence -- Sufficiency
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
For Routon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:

 ¶17   In reviewing challenges to the sufficiency of evidence, we give great deference to the trier-of-fact and do not substitute our judgment unless the evidence, viewed most favorably to the verdict, is so lacking in probative value and force that no reasonable fact-finder could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). If more than one inference can reasonably be drawn from the historical facts presented at the trial, we accept the inference drawn by the fact-finder, even if other inferences could be drawn. See State v. Drogsvold, 104 Wis. 2d 247, 256, 311 N.W.2d 243 (Ct. App. 1981). This deferential standard of review “is the same whether the fact-finder is the court or a jury.” State v. Oppermann, 156 Wis. 2d 241, 246-47, 456 N.W.2d 625 (Ct. App. 1990). However, whether the evidence viewed most favorably to the verdict satisfies the legal elements of the crime constitutes a question of law, which we review de novo. [7] See State v. Cavallari, 214 Wis. 2d 42, 47, 571 N.W.2d 176 (Ct. App. 1997).

Evidence -- Sufficiency – Corroboration of Confession
State v. Edward Bannister, 2007 WI 86, reversing 2006 WI App 136
For Bannister: Craig S. Powell, Byron Lichstein
Issue/Holding: Presence of morphine in deceased’s body is a “significant fact” (on delivery of controlled substance) for purposes of corroborating the defendant’s admission that he gave morphine to the deceased:
 

¶36      Bannister contends that a significant fact must be a more meaningful and particularized fact. In supporting his contention, Bannister points out that both his own confession and the State's corroborative evidence lacks detail. He proffers that had details of the delivery of the morphine been part of the confession or corroborative evidence, his conviction might have been sustainable.

 

¶37      Adopting such a definition of significant fact would deviate from Wisconsin's well-established test for corroboration. Rather than permitting "any significant fact," or "some particulars," Bannister's proposed definition would require that the right or proper fact within the confession be corroborated. Requiring that specific aspects of the confession be corroborated, would require this court to abandon its test and adopt the one adopted in other jurisdictions. This court has repeatedly rejected the approaches of other jurisdictions when it comes to the corroboration rule. See Schultz, 82 Wis. 2d at 752-53.

 

¶38      The State presented evidence that Michael Wolk used morphine. That fact was significant because it gave confidence that Bannister delivered morphine to the Wolks. Accordingly, the State satisfied the corroboration rule.

 

Though the court “reject(s) the approaches of other jurisdictions,” it doesn’t say what those approaches might be, which makes the remark less illuminating than it should be. The “significant fact” test is, to be sure, a bit squishy but it is nonetheless clear that it mandates at least some independent corroboration of the charged crime. Note that the federal rule, as recently characterized by the Washington supreme court, merely requires “independent evidence sufficient to establish that the incriminating statement is trustworthy,” State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (2007). In other words, Bannister doesn’t appear to go as far as the relaxed federal rule, and it remains to be seen just how relaxed our rule is. Did our court mean, for example, to reject the Washington rule (Brockob) which requires corroboration of the specific crime charged? Simply not clear. Also see State v. Campbell, OR App No. A126661, 2/20/08 (must corroborate than defendant's opportunity to commit crime).

Evidence -- Sufficiency – “Harmful Materials” – Necessity of Viewing by Jury
State v. Tyrone Booker, 2006 WI 79, reversing 2005 WI App 182
For Booker: Jeffrey W. Jensen
Issue: Whether conviction under § 948.11, exposing child to harmful materials, can be sustained where the jury heard the children’s and a detective’s descriptions of the videotape but did not themselves view it.
Holding:
¶25      When we view the evidence in this case most favorably to the State, we conclude that a reasonable "trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt," based on the testimony presented. First, the jury could conclude that the video excerpts, as described, predominantly appeal to the prurient interests of children. "Prurient" is defined as "arousing inordinate or unusual sexual desire." Black's Law Dictionary 1263 (8th ed. 2004). The portions of the video that Booker showed to the girls were consistently described as scene upon scene of sexual acts, with all scenes ending with the male masturbating to the point of ejaculation on the female.

¶26      Second, the jury could conclude that the video is patently offensive to prevailing standards in the adult community with regard to what is suitable for children. Motion pictures that depict explicit sexual material harmful to minors may not be shown at outdoor theaters if the screen is visible from a public street, sidewalk, thoroughfare or other public place or from private property where it can be observed by minors. Wis. Stat. § 134.46(2). Videos with the type of content described by the witnesses are not available for rental to minor children in Wisconsin. Videos showing explicit sexual acts are commonly rated and restricted so that minor children will not be exposed to them.[8] A jury could make a reasonable determination based on the testimony presented at trial that the video Booker showed the girls is considered by Wisconsin adults as unsuitable for children.

¶27      Third, the jury could conclude that the video excerpts lacked serious literary, artistic, political, scientific or educational value for 12- to 14-year-olds because nothing was shown except episodes with men and women engaging in sexual acts. There was no evidence that the video had merit for children of these ages, for any reason. And, for the same reasons that the other parts of the "harmful material" element can be met by the evidence presented, a reasonable trier of fact could conclude from the testimony that the video was absolutely void of serious literary, artistic, political, scientific or educational value for children.

Evidence -- Sufficiency
State v. Dennis Charles Schulpius, 2006 WI App 263
For Schulpius: Bridget Boyle
Issue/Holding:
¶11      When reviewing the sufficiency of the evidence, we will reverse a conviction only if “the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” Ibid. Thus, an appellate court must “search the record to support the conclusion reached by the fact finder.” State v. Owen, 202 Wis. 2d 620, 634, 551 N.W.2d 50, 56 (Ct. App. 1996). The Poellinger rule applies to court trials. State v. Lindgren, 2004 WI App 159, ¶24, 275 Wis. 2d 851, 864–865, 687 N.W.2d 60, 66.

¶12      Perry, upon which Schulpius relies for his contention that we must apply a de novo standard of review, involved a case where the facts were essentially undisputed and the challenge was to the trial court’s interpretation of the statute. Perry, 215 Wis. 2d at 707, 573 N.W.2d at 880–881. Here, unlike the situation in Perry, the statute is clear, and Schulpius does not argue that it is not. The dispute, rather, focuses on Schulpius’s contention that he did not do anything that showed that he intended to have sex with “Meghan” other than what he characterizes as his “disgusting and vial” [ sic] computerized communications with her. This presents quintessential fact-issues that are within the standard of review recognized by Poellinger.

Evidence -- Sufficiency
State v. Alvin M. Moore, 2006 WI App 61, PFR filed 3/21/06
For Moore: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶9        Moore argues that there was insufficient evidence to convict him of attempted intimidation of Tamika.  In reviewing the sufficiency of the evidence, we will “not reverse a conviction unless the evidence, viewed most favorably to the state and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt.” [7] State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).
 [7]  The State points out that because the facts are undisputed, Moore is actually challenging whether his actions fulfill the elements of attempted witness intimidation under Wis. Stat. § 940.42. Thus, the State contends that the question presented is one of statutory interpretation, subject to our de novo review. See State v. Perry, 215 Wis. 2d 696, 707, 573 N.W.2d 876 (Ct. App. 1997) (appellate review is de novo where defendant nominally attacked the sufficiency of the evidence to support a finding of guilt but was actually challenging the trial court’s interpretation of a statute and its application to largely undisputed facts). Whether we apply a deferential or de novo standard of review to the facts here, we conclude that there is sufficient evidence to support the convictions.
Evidence -- Sufficiency
State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas
Issue/Holding:
¶21      Standard of Review. The test for reviewing the sufficiency of the evidence to support a verdict is whether the evidence, viewed most favorably to the State and the conviction, is so lacking in probative value and force that no reasonable jury could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990). If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it. Id.   Our consideration of the record includes even evidence which was erroneously admitted. State v. Smith, 2004 WI App 116, ¶32, 275 2d 204, 685 N.W.2d 821, review granted, 2004 WI 123, 275 Wis. 2d 295, 687 N.W.2d 522 (Aug. 2, 2004) (No. 2003AP1698-CR)
Evidence -- Sufficiency -- General
State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision
For Fonte: Martha A. Askins, SPD, Madison Appellate
Issue/Holding:
¶10 In reviewing the sufficiency of the evidence to support a conviction, we do not overturn a jury's verdict "unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).
Evidence -- Sufficiency
State v. Eugene M. Perkins, 2004 WI App 213, PFR filed 11/9/04
For Perkins: Jeffrey W. Jensen
Issue/Holding:
¶13 Although Perkins did move to dismiss at the close of the State’s case, he also proceeded to present a defense. As such, our review concerns only whether there is sufficient evidence to sustain the conviction. See State v. Kelley, 107 Wis. 2d 540, 544, 319 N.W.2d 869 (1982) (“In the present case, after the defendant’s motion to dismiss was denied, he proceeded to put in his defense. Therefore, on review, the appellate court must examine all the evidence in determining whether it is sufficient to sustain the conviction.”).

¶14 Our review of the sufficiency of the evidence is limited. As the supreme court reiterated in State v. Poellinger, 153 Wis. 2d 493, 451 N.W.2d 752 (1990), the test is whether sufficient evidence was presented to the jury to support the finding ….

¶15 An appellate court gives deference to a trial court’s findings because of “the superior opportunity of the trial court to observe the demeanor of witnesses and to gauge the persuasiveness of their testimony.” Kleinstick v. Daleiden, 71 Wis. 2d 432, 442, 238 N.W.2d 714 (1976). It is the jury’s job to resolve any conflicts or inconsistencies in the evidence and to judge the credibility of the evidence ….

¶16 Furthermore, “expert testimony is required only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror.” State v. Whitaker, 167 Wis. 2d 247, 255, 481 N.W.2d 649 (Ct. App. 1992). …

Evidence -- Sufficiency
State v. Obea S. Hayes, 2004 WI 80, affirming 2003 WI App 99, 264 Wis. 2d 377, 663 N.W.2d 351
For Hayes: Philip J. Brehm:
Issue/Holding:
¶56. The standard of review in determining whether the evidence was sufficient to support a conviction is that "an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt."31

¶57. Our review of a sufficiency of the evidence claim is therefore very narrow. We give great deference to the determination of the trier of fact.32 We must examine the record to find facts that support upholding the jury's decision to convict.

Evidence -- Sufficiency, In General
State v. John Norman, 2003 WI 72, affirming unpublished decision of court of appeals
For Norman: Angela Kachelski
Issue/Holding: ¶66. A defendant challenging the sufficiency of the evidence used to convict him bears a heavy burden. A criminal conviction will not be reversed unless the evidence, viewed most favorably to the State and the conviction, is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt….   ¶68. The jury is the ultimate arbiter of a witness's credibility. Nothing about either Shoeder's or the defendant's testimony or other evidence is so insufficient in probative value and force that it can be said as a matter of law that no trier of fact, acting reasonably, could have found the defendant guilty beyond a reasonable doubt.
Evidence -- Sufficiency -- Measured by Jury Instructions
State v. Mark Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Ct. App. 1999).
For Inglin: Stephen M. Glynn & Robert R. Henak.
Issue/Holding: The evidence must "support guilt on the charge submitted to the jury in the instructions." Citing State v. Wulff, 207 Wis. 2d 143, 153, 557 N.W.2d 813 (1997).
Evidence -- Sufficiency
State v. James Lalor, 2003 WI App 68, PFR filed 4/15/03
For Lalor: T. Christopher Kelly
Issue/Holding:
¶11. Lalor first argues that the State failed to prove beyond a reasonable doubt that there is a substantial likelihood that he will engage in sexually violent acts. Lalor frames this argument in terms of whether the State met its burden of proof, an issue we review de novo. See Hallin v. Hallin, 228 Wis. 2d 250, 258, 596 N.W.2d 818 (Ct. App. 1999) ("Whether a party has met its burden of proof is a question of law which this court may examine without giving deference to the trial court's conclusion."). Lalor acknowledges that in making this determination we defer to the credibility determinations made by the trial court unless the witness is incredible as a matter of law. See id. at 258-59. ...

¶13. In Wisconsin, scientific testimony is admissible if it is an aid to the jury or reliable enough to be probative. Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶21, 238 Wis. 2d 477, 617 N.W.2d 881, aff'd, 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727. Once the relevancy of the testimony is established and the witness is qualified as an expert, the reliability of the evidence is a weight and credibility issue for the fact finder and any reliability challenges must be made through cross-examination or by other means of impeachment. Id. Because weight and credibility are left to the fact finder, our role is to determine whether the facts found are sufficient to sustain the trial court's finding that Lalor is a sexually violent person. In doing so, we view the evidence in the light most favorable to the commitment. State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). We will not overturn the verdict unless the evidence is so insufficient in probative value and force that no reasonable trier of fact could have found the person to be sexually violent beyond a reasonable doubt. Id.

Evidence -- Sufficiency
State v. Michael J. Forster, 2003 WI App 29, PFR filed 1/31/03
For Forster: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶2. An appellate court views facts in the light most favorable to sustain the verdict and where more than one inference might be drawn from the evidence presented at trial, we are bound to accept the inference drawn by the jury. Burch v. Am. Family Mut. Ins. Co., 198 Wis. 2d 465, 474, 543 N.W.2d 277 (1996). Thus, we will relate the facts in a light most favorable to the jury verdict. See State v. Bauer, 2000 WI App 206, 3, 238 Wis. 2d 687, 617 N.W.2d 902. ...

¶12. We will reverse a conviction based on insufficient evidence only if, as a matter of law, the probative value and force of the evidence presented is such that no trier of fact acting reasonably could have found guilt beyond a reasonable doubt. State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). However, questions of statutory interpretation, such as the meaning of "intimate parts" within Wis. Stat. ch. 939, are questions of law that we review de novo. See State v. Pablo R., 2000 WI App 242, 7, 239 Wis. 2d 479, 620 N.W.2d 423. When we interpret a statute, our goal is to ascertain and give effect to the intent of the legislature. Id. at 7. We first look to the language of the statute itself. Id. If the language of the statute is unambiguous in its meaning, we go no further. Id. A cardinal rule of statutory construction is that statutes must be construed to avoid an absurd or unreasonable result. State v. Mendoza, 96 Wis. 2d 106, 115, 291 N.W.2d 478 (1980). We will not find a statute ambiguous simply because the parties differ as to its meaning. State ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d 148, 154-55, 454 N.W.2d 792 (1990). "The plain meaning of a statute takes precedence over all extrinsic sources and rules of construction." UFE Inc. v. LIRC, 201 Wis. 2d 274, 282 n.2, 548 N.W.2d 57 (1996).

Evidence -- Sufficiency
State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook
Issue/Holding:
¶12 We disagree, however, that we must reverse the conviction if "any trier of fact" would be able to "reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence." Hauk has confused the standard for the jury to use in determining whether reasonable doubt exists and the standard of appellate review. It is the role of the fact finder, not this court, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts. Poellinger, 153 Wis. 2d at 506. Therefore, although the jury is required to exclude every reasonable hypothesis of the defendant's innocence before returning a guilty verdict, we must affirm the jury's finding if there is any reasonable hypothesis that supports the conviction. State v. Blair, 164 Wis. 2d 64, 68 n.1, 473 N.W.2d 566 (Ct. App. 1991).
Sufficiency of Evidence -- SVP: Supervised Release Petition
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶8. The issue presented by the parties in the instant case is whether a circuit court's denial of a chapter 980 petition for supervised release should be classified as a determination of a question of law or as an exercise of circuit court discretion. …

¶38. We next look to State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), a chapter 980 case, for the sufficiency of evidence standard of review. …

¶42 … [T]he Curiel standard of independent review of the circuit court's decision on the basis of the sufficiency of evidence, rather than a review for erroneous exercise of discretion, is appropriate in the instant case.

¶44. The sufficiency of evidence standard of independent appellate review gives deference to the circuit court's strength in determining the credibility of witnesses and in evaluating the evidence and recognizes the evaluative aspects involved in a circuit court's denial of a petition for supervised release. Circuit courts are better able than appellate courts to determine the credibility of witnesses and evaluate the evidence. In making a determination about the sufficiency of evidence, a reviewing court may draw not only on a circuit court's observational advantage, but also on the circuit court's reasoning.

Don’t let the somewhat clipped quotes above mislead you: this is a very important case on standard of review. Granted, SOR is technical and primarily for appellate specialists to fret about, but … it’s not merely recurrent, it underlies every appeal and typically determines the outcome. The court itself revisits and casts doubt on a number of cases [which it terms “a cross-pollenated [sic] mish-mash”]: “the efficacy of Seibert, Keding, Cook, and Wenk as precedential or persuasive authority that the standard of review in the instant case is erroneous exercise of discretion is limited.” The court doesn’t explicitly overrule any of these cases, nor is that the likely effect. Rather, the court indicates that any given SOR case can’t be simplistically applied beyond its immediate context (which the court criticizes the court of appeals for doing, ¶30). The lesson of this case probably reduces to the following formulation: Context, which is to say statutory text and legislative intent, matters; the statute in this instance places a burden of proof on the State, and whether or not a litigant has met its burden of proof is reviewed paradigmatically as a question of law rather than discretion, ¶29. So it is here. Along the way, the court suggests that when the statute imposes on the circuit court a “subjectively” determined decision (by, for example, requiring that the court be “satisfied” as to some matter), then the decision is “inherently discretionary,” ¶28, which is of course reviewed deferentially. And where in distinction, as in this instance, the statute explicitly lays out a burden of proof, from which the court’s decision automatically flows, then review of whether the evidence has met that burden is something of a mix: non-deferential as to the ultimate conclusion, after giving weight to trial-level credibility determinations, etc. In effect, you take the facts as found by the trial court and then determine whether they satisfy the burden of proof. This methodology, the court says, “fosters consistency and uniformity in circuit court decision making,” ¶45. One wonders if it doesn’t also express a bit of concern that, given essentially unfettered and unreviewable discretion, circuit court decision making in the SVP context would be nothing so much as a rubber stamp.
Evidence -- Venue, Proof of
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper
Issue/Holding:
¶19. This court will not reverse a conviction based on the failure of the State to establish venue unless the evidence, viewed most favorably to the State and the conviction, is so insufficient that there is no basis upon which a trier of fact could determine venue beyond a reasonable doubt. State v. Corey J.G., 215 Wis. 2d 395, 407-08, 572 N.W.2d 845 (1998). First, we note that although venue in Wisconsin must be proved beyond a reasonable doubt, it is not an element of the crime, but rather a matter of procedure, which refers to the place of trial. State v. Dombrowski, 44 Wis. 2d 486, 501-02, 171 N.W.2d 349 (1969). Second, venue may be established by proof of facts and circumstances from which it may be reasonably inferred. See Smazal v. State, 31 Wis. 2d 360, 363-64, 142 N.W.2d 808 (1966).
Sufficiency of Evidence, TPR
State v. Lamont D., 2005 WI App 264
Issue/Holding:
¶10      An appellate court should not overturn a trial court’s decision to dismiss for insufficient evidence unless the record reveals that the circuit court was “clearly wrong.” Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 110, 362 N.W.2d 118 (1985); see also James v. Heintz, 165 Wis. 2d 572, 577, 478 N.W.2d 31 (Ct. App. 1991); Olfe v. Gordon, 93 Wis. 2d 173, 185-86, 286 N.W.2d 573 (1980). Because a trial court is better positioned to decide the weight and relevancy of the testimony, an appellate court “must also give substantial deference to the trial court’s better ability to assess the evidence.” Weiss, 197 Wis. 2d at 388-89 (citation omitted).

¶11      With regard to the State’s and the guardian ad litem’s request for a new trial in the interest of justice, under Wis. Stat. § 805.15(1), a trial court may set aside a jury verdict and order a new trial in the interest of justice. We accord “great deference” to the trial court’s exercise of discretion under this subsection. Sievert v. American Fam. Mut. Ins. Co., 180 Wis. 2d 426, 431, 509 N.W.2d 75 (Ct. App. 1993), aff’d, 190 Wis. 2d 623, 528 N.W.2d 413 (1995). We apply great deference “because the order is itself discretionary, and the trial court is in the best position to observe and evaluate the evidence.” Id. This “interest of justice” standard encompasses the same grounds as contained in Wis. Stat. § 752.35, including the authority to reverse when errors have prevented the real controversy from being fully tried. State v. Harp, 161 Wis. 2d 773, 779, 469 N.W.2d 210 (Ct. App. 1991).

Evidence -- Bench Trial -- Decisional Reliance on Improper Consideration
State v. Leonard A. Sarnowski, 2005 WI App 48
For Sarnowski: Michael K. Gould, SPD, Milwaukee Appellate
Issue/Holding: Where the judge, sitting as fact-finder at a bench trial, “improperly based her finding of guilt on what she knew from her own experience rather than the evidence at trial,” the conviction is reversed and new trial mandated, ¶1.
Sarnowski, a carpenter by training, was charged with nonsupport, § 948.22(6) and raised an affirmative defense of inability to find employment; the State met the defense with the ex-wife’s testimony that “she believed” he had indeed worked during the relevant time period. The trial court resolved the issue against Sarnowski by invoking the judge’s own “personal experience looking for carpenters,” which is to say that during this time period she “gutted and redid” an old home and perceived a shortage of carpenters. The judge wasn’t, she said, taking judicial notice of this “fact,” but, rather, “merely ‘weighing the evidence,’ albeit through the filter of her ‘own experience.’” True, the fact-finder is allowed some latitude in taking account of matters of common knowledge and observations, see Wis JI—Crim No 195, but in this instance the judge slipped permissible bounds: carpenter-shortfall isn’t within “common knowledge”; besides, the judge’s own difficulty finding carpenters simply isn’t evidence of job opportunities for carpenters, ¶15:
But by using her specific experience as a substitute for that evidence, which was not subject to judicial notice, the trial judge became, in essence, an impermissible surrogate witness for that evidence. See Solberg v. Robbins Lumber Co., 147 Wis. 259, 265, 133 N.W. 28, 30 (1911) (jurors may use personal knowledge to understand the evidence; they may not "supply a material item of evidence by assuming knowledge on the subject").
It probably didn’t hurt, either, that the appellate opinion was written by the author of an evidence treatise.

Standard of Review -- Foreign Law

Standard of Review -- Foreign Law
Griffin v. Mark Travel Corp, 2006 WI App 213
Issue/Holding:
¶4        This appeal requires that we apply foreign law—the law of Mexico in connection with its adoption of the Hague Convention. In Wisconsin, unlike the rule in federal courts since the promulgation of Rule 44.1 of the Federal Rules of Civil Procedure in 1966, interpretation of foreign law is a question of fact decided by the trial judge, not of law. Milwaukee Cheese Co. v. Olafsson, 40 Wis. 2d 575, 580, 162 N.W.2d 609, 612 (1968) (The “laws of foreign countries must be pleaded and proved as any other fact.”) (applying Wisconsin’s adoption of the Uniform Judicial Notice of Foreign Law Act, Wis. Stat. § 891.01 (1967), now found in Wis. Stat. Rule 902.02; both former § 891.01(5) and current Rule 902.02(5) make the interpretation of the laws of a foreign country “an issue for the court,” see Milwaukee Cheese, 40 Wis. 2d at 579, 162 N.W.2d at 612 (referencing former § 891.01(5))); Witt v. Realist, Inc., 18 Wis. 2d 282, 289, 118 N.W.2d 85, 89 (1962) (law of foreign country an issue of fact); cf. Hite v. Keene, 149 Wis. 207, 217, 134 N.W. 383, 386 (1912) (“All the authorities hold that a foreign law must be proved as any other fact in a case, and when that proof is made by oral testimony in reference to which there is a conflict, we see no reason why its weight and credibility should not be determined by the jury under proper instructions, like any other material fact.”) (applying law before the adoption of the Uniform Judicial Notice of Foreign Law Act, which, as we have seen, makes the issue of fact one “for the court”).[1][1] Significantly, a court may not take judicial notice of a foreign country’s law. Wis. Stat. Rule 902.02(5) (“The law of a jurisdiction other than those referred to in sub. (1) [judicial notice of the laws of United States jurisdictions] shall be an issue for the court, but shall not be subject to the foregoing provisions concerning judicial notice.”) (emphasis added). [2] Thus, the issue of what the law of a foreign country requires is one of pure fact that must be proved. A trial court’s findings of fact may not be set aside on appeal unless they are “clearly erroneous.” Wis. Stat. Rule 805.17(2) (“Findings of fact shall not be set aside unless clearly erroneous.”). We examine the proof submitted to the trial court in this light.
See also ¶12 n. 3:
Viajes Turquesa contends that interpretation of the Hague Convention should be a question of law subject to our de novo review, and relies on State v. King, 212 Wis. 2d 498, 504, 571 N.W.2d 680, 683 (Ct. App. 1997), which concerned a treaty between the United States and a native-American tribe within the borders of the United States, id., 212 Wis. 2d at 501–502, 571 N.W.2d at 681–682, for the proposition that treaty interpretation is a legal issue subject to de novo appellate review. First, we question whether a treaty between the United States and a native-American tribe is “foreign law” as that concept was used in Milwaukee Cheese Co. v. Olafsson, 40 Wis. 2d 575, 580, 162 N.W.2d 609, 612 (1968), and the other authorities we cite in ¶4 of this opinion, as well as in Wis. Stat. Rule 902.02, which, in subsections (1) and (5) make a distinction between the “law of a jurisdiction other than” a “state, territory and other jurisdiction of the United States.”

Second, as noted, the focus here is on what Mexican law provides, and that is clearly within the rule recognized by Milwaukee Cheese and the other authorities. Thus, we do not have to decide whether the language in King upon which Viajes Turquesa relies conflicts with Wisconsin Supreme Court precedent, which, of course, would govern. See Madison Reprographics, Inc. v. Cook’s Reprographics, Inc., 203 Wis. 2d 226, 238, 552 N.W.2d 440, 446 (Ct. App. 1996) (“When a court of appeals decision conflicts with a supreme court opinion, we must follow the supreme court opinion.”).

Keep in mind the reference to “interpretation of foreign law.” If the issue has to do with a treaty term instead, review may be plenary, see, e.g.,   State v. Jose Carlos Navarro, 2003 WI App 50, ¶7 (“However, the interpretation of a treaty is a question of law, which we review de novo.”); State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, ¶5.

Standard of Review -- Guilty Plea

Standard of Review – Guilty Pleas: Plea Bargain Terms
State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09
For Wesley: Alvin Ugent
Issue/Holding:
¶12      The interpretation of plea agreements is rooted in contract law. See State v. Deilke, 2004 WI 104, ¶12, 274 Wis. 2d 595, 682 N.W.2d 945. Contractual language is ambiguous only when it is “reasonably or fairly susceptible of more than one construction.” State v. Windom, 169 Wis. 2d 341, 348-49, 485 N.W.2d 832 (Ct. App. 1992) (citation omitted). Whether an ambiguity exists in a plea agreement is a question of law we decide de novo. See id. at 349.
Wesley, as the party seeking to show a breach of the agreement, “bears the burden of convincing us the agreement is not ambiguous and his interpretation is correct,” ¶16. Separate but related: What do you do with ambiguous terms? Every federal circuit court as well as a substantial number of state courts hold “ that ambiguities in plea agreements must be construed against the government and in accordance with the defendant’s reasonable understanding of the agreement,” ¶18 n. 5. But the court is bound by its prior holding, State v. Jorgensen, 137 Wis. 2d 163, 169-70, 404 N.W.2d 66 (Ct. App. 1987), “that construction which would safeguard the public interests, substantially, must be given preference,” ¶18. The court adds: “Were we writing on a clean slate, and were the issue properly before us, we would join the unanimous agreement of the federal circuits. But … Jorgensen … is the law in this state unless or until our supreme court determines otherwise,” ¶18 n.5.
Standard of Review – Deferred Prosecution Agreement
State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz
Issue/Holding:
¶10      Both the State and Kaczmarski agree that the deferred prosecution agreement is analogous to a contract and therefore we draw upon principles of contract law in determining the respective rights of the parties to the agreement. See State v. Roou, 2007 WI App 193, ¶25, 305 Wis. 2d 164, 738 N.W.2d 173 (applying contract-law principles in the context of a plea agreement). The interpretation of a written contract is a question of law subject to de novo review. State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). “[W]hen terms of a contract are plain and unambiguous, we will construe the contract as it stands.” Id. A contract is ambiguous only when it is “‘reasonably or fairly susceptible of more than one construction.’” State v. Windom, 169 Wis. 2d 341, 349, 485 N.W.2d 832 (Ct. App. 1992) (quoting Borchardt v. Wilk, 156 Wis.  2d 420, 427, 456 N.W.2d 653 (Ct. App. 1990)). Whether a contract is ambiguous is a question of law we decide de novo. Id. We may not construe a contract “to revise an unambiguous contract in order to relieve a party to a contract ‘from any disadvantageous terms’ to which he or she has agreed.” Id. (quoting Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692 (Ct. App. 1979)). We construe ambiguous language in a contract against the drafter. Walters v. National Props., LLC, 2005 WI 87, ¶14, 282 Wis. 2d 176, 699 N.W.2d 71.
Standard of Review -- Guilty Plea – Remedy for Defective Plea, Multiple Counts
State v. Mark J. Roou, 2007 WI App 193
For Roou: John P. Tedesco, SPD, Madison Appellate
Issue: Whether review of a trial court’s decision to allow plea-withdrawal on only one count of a plea-bargained multiple-count case is reviewed deferentially or independently.
Holding:
¶13 Deilke is important both for what it did and did not say about Robinson. It cited Robinson for the proposition that the appropriate remedy depends upon all of the circumstances and a consideration of the parties’ interests. Deilke, 274 Wis. 2d 595, ¶25. But it did not cite Robinson in its discussion of the standard of review, see id., ¶10, looking instead to State v. Howard, 2001 WI App 137, ¶36, 246 Wis. 2d 475, 630 N.W.2d 244, which, after examining supreme court and federal cases, concluded that a sentencing court has the discretion to determine the appropriate remedy. We agree, and conclude that a trial court’s choice of remedy when faced with a motion to withdraw all or part of a plea agreement should be reviewed under an erroneous exercise of discretion standard. [6]
Often enough, the appellate standard of review determines the outcome, something that certainly seems true in this instance: the court of appeals upholds the trial court’s grant of partial relief under a regime of deferential review. What, though, informs the trial court’s exercise of discretion in this context? The court of appeals doesn’t say, at least not explicitly. Nonetheless, the court’s ensuing discussion does stress the fact that the State promised not to re-prosecute the vacated count and as a result Roou will not end worse off by leaving the other count intact. Whether that is the salient fact (or that the plea bargain didn’t necessarily hinge on the vacated count) isn’t quite clear—but that certainly seems like the pivot point for the decision. Keep in mind, too, that relief was granted in circuit court: what happens when the trial court denies the motion to withdraw one plea (but not another) and the court of appeals reverses that denial? Remand for original exercise of discretion on the separate question of partial or global relief?
Standard of Review -- Guilty Plea: Pre-Sentence Motion to Withdraw Plea
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:

¶30      A circuit court's discretionary decision to grant or deny a motion to withdraw a plea before sentencing is subject to review under the erroneous exercise of discretion standard. Kivioja, 225 Wis. 2d at 284. All that "this court need find to sustain a discretionary act is that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982); see Kivioja, 225 Wis. 2d at 284 (citing State v. Salentine, 206 Wis. 2d 419, 429-30, 557 N.W.2d 439 (Ct. App. 1996)). In Canedy, the court said it would affirm the circuit court's decision as long as it was demonstrably "'made and based upon the facts appearing in the record and in reliance on the appropriate or applicable law.'" Canedy, 161 Wis. 2d at 579 (quoting Hartung, 102 Wis. 2d at 66).

¶33      On review of the circuit court's decision, we apply a deferential, clearly erroneous standard to the court's findings of evidentiary or historical fact. State v. Turner, 136 Wis. 2d 333, 343, 401 N.W.2d 827 (1987). The standard also applies to credibility determinations. Cf. Canedy, 161 Wis. 2d at 579; Dudrey v. State, 74 Wis. 2d 480, 483, 247 N.W.2d 105 (1976). In reviewing factual determinations as part of a review of discretion, we look to whether the court has examined the relevant facts and whether the court's examination is supported by the record. State v. Shanks, 152 Wis. 2d 284, 289, 448 N.W.2d 264 (Ct. App. 1989).

¶34      When there are no issues of fact or credibility in play, the question whether the defendant has offered a fair and just reason becomes a question of law that we review de novo. …

A mere 14 paragraphs after announcing that the circuit decision is reviewed “under the erroneous exercise of discretion standard” (¶30) the court says “the applicable standard of review … requires the reviewing court to affirm the circuit court’s decision unless it is clearly erroneous” (¶44). Is this nit-picky? Sure. But there is a difference between deferential review of a “decision” and deferential review of a finding of fact, even if review in either instance takes one or another form of deference. Critically, as the court expressly notes in ¶34, review of a decision on undisputed or accepted facts lends itself to independent review; by contrast, review of a finding of fact, even when the record seems to be undisputed as when the circuit finds a witness non-credible, will remain deferential. This unfortunate ambiguity aside, there seems little doubt that the court means to apply a stringent test for reversal on appeal (“the defendant's burden to reverse the circuit court on appeal becomes relatively high,” ¶44). On the plus side, the court acknowledges that the grant of plea-withdrawal enjoys the same shield against reversal as a denial, ¶47.

Standard of Review -- Guilty Plea: Motion to Withdraw Plea, Hampton-Type Evidentiary Hearing Mooting out Claim for Bangert Hearing on Same Ground
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:

¶30      Standard of Appellate Review. This court decides whether a postconviction motion to withdraw a guilty or no contest plea under Bangert entitles a defendant to an evidentiary hearing independently of the circuit court and court of appeals but benefiting from their analyses. [21]

¶31      A reviewing court first determines as a matter of law whether a defendant's motion "has pointed to deficiencies in the plea colloquy that establish a violation of Wis. Stat. § 971.08 or other mandatory duties at a plea hearing." [22] The reviewing court then determines as a matter of law whether a defendant "has sufficiently alleged that he did not know or understand information that should have been provided at the plea hearing . . . ." [23]

Standard of Review -- Standard of Review -- Guilty Plea: Motion to Withdraw Plea, Nelson/Bentley-type Motion
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:

¶78      Standard of Appellate Review. Under Nelson/Bentley, a reviewing court determines as a matter of law, independently of the circuit court and court of appeals but benefiting from their analyses, whether a defendant's motion to withdraw a guilty plea "on its face alleges facts which would entitle the defendant to relief," [53] and whether the record conclusively demonstrates that the defendant is entitled to no relief.

Standard of Review -- Guilty Plea: Motion to Withdraw Plea, Hampton-Type Evidentiary Hearing Mooting out Claim for Bangert Hearing on Same Ground
State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn
Issue/Holding: Where the trial court held an evidentiary on defendant’s motion to withdraw plea because of alleged coercion, there is no need to review the court’s simultaneous denial of a hearing on whether the plea colloquy was defective:
¶19 In some cases, shifting the burden of proof to the State, per Bangert, will affect the outcome of a plea withdrawal hearing. But here Goyette makes no attempt to explain how he was affected by the manner in which the circuit court conducted the plea withdrawal hearing. Stated differently, Goyette does not suggest how he was affected by the court’s legal conclusion that no Bangert violation occurred. Goyette does not assert that any fact finding was affected, and his arguments have nothing to do with which party had the burden of proof at the hearing.

¶20 Our review of the hearing, the parties’ arguments, and the circuit court’s decision persuades us that the manner in which the hearing was conducted had no effect on the outcome. Goyette called the same two key witnesses that the State would have called, namely, Goyette and his trial counsel. [10] There is no reason to think that the substance of their testimony would have been different had they been called by the State, rather than by Goyette. And, as we shall see, Goyette’s testimony alone would have been sufficient to support the conclusion that the State met its burden of showing that Goyette’s pleas were voluntary.

Standard of Review -- Guilty Plea: Post-Sentence Motion to Withdraw Plea, Pleading Requirement
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶21      Brown's postconviction motion concerns alleged deficiencies in the plea colloquy. Whether Brown has pointed to deficiencies in the plea colloquy that establish a violation of Wis. Stat. § 971.08 or other mandatory duties at a plea hearing is a question of law we review de novo. See State v. Brandt, 226 Wis.  2d 610, 618, 594 N.W.2d 759 (1999). Likewise, whether Brown has sufficiently alleged that he did not know or understand information that should have been provided at the plea hearing is a question of law. See State v. Bentley, 201 Wis.  2d 303, 310, 548 N.W.2d 50 (1996).
Standard of Review -- Guilty Plea: Pre-Sentence Motion to Withdraw Plea, Generally
State v. Barry M. Jenkins, 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding:
¶20      “[A trial] court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution will be substantially prejudiced.” State v. Bollig, 2000 WI 6, ¶28, 232 Wis. 2d 561, 605 N.W.2d 199. …

¶21      “Although ‘fair and just reason’ has not been precisely defined,” Wisconsin courts have recognized a variety of fair and just reasons for plea withdrawal prior to sentencing, such as: genuine misunderstanding of the plea’s consequences; haste and confusion in entering the plea; coercion on the part of trial counsel; and confusion resulting from misleading advice from the defendant’s attorney. State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). In addition, an “assertion of innocence and the promptness with which the motion [to withdraw a plea prior to sentencing] is brought [are] factors relevant to the court’s consideration,” see id., but they are neither required nor determinative.

¶22      The defendant has the burden of proving, by a preponderance of the evidence, a fair and just reason for the plea withdrawal. State v. Garcia, 192 Wis.  2d 845, 862, 532 N.W.2d 111 (1995). We review a trial court’s decision to deny a defendant’s motion to withdraw his guilty plea prior to sentencing using the erroneous exercise of discretion standard. State v. Timblin, 2002 WI App 304, ¶20, 259 Wis. 2d 299, 657 N.W.2d 89. “Thus, we will uphold a discretionary decision if the [trial] court reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts.”  Id

Standard of Review -- Guilty Plea Withdrawal, Generally
State v. Monika S. Lackershire, 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶5        When a defendant seeks to withdraw a guilty plea after sentencing, she “carries the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice.” State v. Fosnow , 2001 WI App 2, ¶7, 240 Wis.  2d 699, 624 N.W.2d 883 (citation omitted). Whether to allow plea withdrawal is generally committed to the trial court’s discretion, meaning this court will reverse only if the trial court has erroneously exercised that discretion. Id.

¶6        However, even after sentencing, a defendant may withdraw a plea as a matter of right if it is established that a violation of constitutional magnitude occurred during entry of the plea. See State v. Garcia, 192 Wis.  2d 845, 864, 532 N.W.2d 111 (1995). A guilty or no contest plea must be knowing, intelligent, and voluntary to pass constitutional muster. See State v. Bangert, 131 Wis.  2d 246, 257-61, 389 N.W.2d 12 (1986). We review constitutional questions de novo. Garcia, 192 Wis. 2d at 864-65.

Guilty Plea Withdrawal, Generally
State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶10      “The question of whether a defendant may withdraw his plea is left to the sound discretion of the [trial] court.” State v. Bollig, 2000 WI 6, ¶28, 232 Wis.  2d 561, 605 N.W.2d 199. “In order to sustain a [trial] court’s discretionary decision to deny a plea withdrawal, we must ensure that the court’s determination was made upon the facts of record and in reliance on the appropriate and applicable law.”  Id., ¶41. As such, “[w]e will find an erroneous exercise of discretion if the court improperly relied upon irrelevant or immaterial factors.”  Id.
Guilty Plea -- Plea Bargain Breach
State v. Richard L. Bowers, 2005 WI App 72
For Bowers: George Tauscheck
Issue/Holding:
¶5. The question of whether the State's conduct breached the terms of the plea agreement is a question of law that we review de novo. State v. Howard, 2001 WI App 137, ¶15, 246 Wis. 2d 475, 630 N.W.2d 244, review denied, 2003 WI 126, 265 Wis. 2d 418, 668 N.W.2d 558 (No. 02-1677-CR). Additionally, a trial court's ineffective assistance of counsel analysis involves mixed questions of law and fact. Id., ¶23. The trial court's factual findings will not be reversed unless they are clearly erroneous; however, issues bearing on whether trial counsel's conduct was deficient and prejudicial are questions of law that this court reviews de novo. Id., ¶23.
Guilty Plea Withdrawal, Constitutional Violation
State v. Anthony L. Dawson, 2004 WI App 173
For Dawson: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶7. Although it is often said that whether to grant a post-sentence plea withdrawal motion is committed to the sound discretion of the trial court, when a defendant establishes a constitutional violation, the withdrawal of his or her plea becomes a matter of right and the trial court has "no discretion in the matter" to deny the motion. Bangert, 131 Wis. 2d at 283. Whether a plea was knowingly and voluntarily entered is a question of constitutional fact. Id. We affirm the trial court's findings of evidentiary or historical facts unless they are clearly erroneous, but we independently determine whether the established facts constitute a constitutional violation that entitles a defendant to withdraw his or her plea. Id. at 283-84; State v. Sturgeon, 231 Wis. 2d 487, 496, 605 N.W.2d 589 (Ct. App. 1999).
Guilty Plea Withdrawal, Constitutional Violation, Generally
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
Issue/Holding:
¶11 The present appeal involves a motion to withdraw a guilty plea based on both constitutional and statutory grounds. We first address Harris's constitutional argument. When a defendant seeks to withdraw a guilty plea on constitutional grounds, he must establish all of the following: "(a) that a violation of a constitutional right has occurred; (b) that this violation caused him to plead guilty; and (c) that at the time of his plea he was unaware of the potential constitutional challenges to the case against him because of the violation." Hatcher v. State, 83 Wis. 2d 559, 565, 266 N.W.2d 320 (1978). Having established the foregoing elements, a defendant may withdraw his guilty plea as a matter of right. Id. When applying this test, appellate courts review the underlying historical facts under the clearly erroneous standard but review questions of ultimate constitutional fact independently. Sturgeon, 231 Wis. 2d at 496.
Guilty Plea Withdrawal, Statutory Violation, Generally
State v. Kevin Harris, 2004 WI 64, affirming as modified 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813
For Harris: Steven A. Koch
Issue/Holding:
¶25 When a defendant seeks a plea withdrawal on nonconstitutional grounds, he may withdraw his guilty plea after demonstrating that a withdrawal is necessary to avoid a manifest injustice." Hatcher, 83 Wis. 2d at 564. When proceeding on this theory, "the defendant has the burden of proving grounds for withdrawal of his guilty plea by clear and convincing evidence." Id. The fact that the defendant has waived certain defenses by entering into a guilty plea is not dispositive: "'The question on a motion to withdraw a plea is not whether the accused has waived his rights but whether he should be relieved from such a waiver.'" Id. at 565 (quoting Brisk v. State, 44 Wis. 2d 584, 588, 172 N.W.2d 199 (1969)). Harris argues he is entitled to withdraw his guilty plea as a result of the State's violation of the discovery statute. Determining whether the court of appeals correctly concluded that the State violated its discovery obligations requires the interpretation and application of the discovery statute to a given set of facts and presents a question of law subject to independent appellate review. DeLao, 252 Wis. 2d 289, 14.
Guilty Plea -- Withdrawal -- Post-Sentencing
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding:
¶13. A defendant seeking to withdraw a guilty or no contest plea after sentencing bears "the heavy burden of establishing, by clear and convincing evidence, that withdrawal of the plea is necessary to correct a manifest injustice." State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). A "manifest injustice" occurs when a defendant makes a plea involuntarily or without knowledge of the charge or potential punishment if convicted. See Wis. Stat. § 971.08(1)(a); State v. James, 176 Wis. 2d 230, 237, 500 N.W.2d 345 (Ct. App. 1993). "A plea which is not knowingly, voluntarily or intelligently entered is a manifest injustice." State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995).
Guilty Plea -- Withdrawal -- Elements
State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski
Issue/Holding:
¶10. Generally, we review a trial court's denial of a motion to withdraw a guilty plea for an erroneous exercise of discretion. See Black, 2001 WI 31 at ¶9. Here, however, the issue is not what Krawczyk knew or understood regarding the elements of felony murder, but whether the information undisputedly provided to him was legally correct. Our interpretations of the felony murder statute, and of pertinent jury instructions and case law, present only questions of law which we decide de novo. See, e.g., State v. Neumann, 179 Wis. 2d 687, 699, 508 N.W.2d 54 (Ct. App. 1993) (Whether jury instructions are a correct statement of the law is a question of law that we review de novo.).
Guilty Plea -- Withdrawal
State v. Richard A. Lange, 2003 WI App 2
For Lange: Daniel F. Snyder
Issue/Holding:
¶15. Whether to permit a defendant to withdraw a no contest plea lies within the sound discretion of the trial court. State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). Postconviction plea withdrawal is permitted only to correct a manifest injustice. Id. A plea which is not knowingly, voluntarily and intelligently entered is a manifest injustice. Id. The defendant bears the burden of showing the necessity for plea withdrawal by clear and convincing evidence. See id.

¶16. When a defendant moves to withdraw his or her plea based on the trial court's failure to comply with the requirements of Wis. Stat. § 971.08 and State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986), the defendant must (1) make a prima facie showing that the trial court violated § 971.08 and (2) allege that he or she did not know or understand the information that the court should have provided at the plea hearing. Giebel, 198 Wis. 2d at 216 (citing Bangert, 131 Wis. 2d at 274). Whether a defendant has established a prima facie case for plea withdrawal presents a question of law that we review de novo. State v. Hansen, 168 Wis. 2d 749, 755, 485 N.W.2d 74 (Ct. App. 1992).

Guilty Plea
State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision
For Trochinski: James L. Fullin, SPD, Madison Appellate
On-line Brief (COA): http://www.wisspd.org/html/appellate/briefbank/briefs/002545.pdf
Issue/Holding:
¶16. Trochinski contends that his plea was entered without knowledge of the "harmful to children" element. We, therefore, review whether his plea was knowingly, voluntarily and intelligently entered as a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶13, 232 Wis. 2d 561, 605 N.W.2d 199. 'We will not upset the circuit court's findings of historical or evidentiary facts unless they are clearly erroneous.' Id. However, whether Trochinski's plea was knowing and intelligent poses a constitutional fact question, which we independently review, benefiting from the analyses of the circuit court and the court of appeals. See id. at ¶47 ('A plea violates due process unless the defendant has a full understanding of the nature of the charges against him.'); see also State v. Brandt, 226 Wis. 2d 610, 618, 594 N.W.2d 759 (1999) (application of a set of facts to the appropriate legal standard is a question of law we review independently).
Guilty Plea - Plea Bargain Breach
State v. Jesse Liukonen, 2004 WI App 157
For Liukonen: Russell L. Hanson
Issue/Holding: Where the defense fails to object to an alleged plea bargain breach, the issue becomes in the first instance whether the State materially and substantially breached the agreement; if so, then the succeeding issues are whether the lack of objection was due to ineffective assistance of counsel; which remedy is appropriate; and whether the defendant assented to the “new” plea agreement. ¶6 (citing State v. Howard, 2001 WI App 137, 12, 246 Wis. 2d 475, 630 N.W.2d 244; State v. Naydihor, 2004 WI 43, ¶9, __ Wis. 2d __, 678 N.W.2d 220; and State v. Sprang, 2004 WI App 121, ¶¶27-28). Whether the State breached the agreement, and whether the breach was “substantial and material” are questions of law. ¶9
Guilty Plea - Plea Bargain Breach
State v. Leonard C. Matson, 2003 WI App 253
For Matson: Michael Yovovich, SPD, Madison Appellate
Issue/Holding:
¶15. The terms of a plea agreement and the historical facts of the State's conduct that allegedly constitute a breach of a plea agreement are questions of fact. State v. Howland, 2003 WI App 104, ¶24, 264 Wis. 2d 279, 663 N.W.2d 340. We review the circuit court's findings of fact under the clearly erroneous standard of review. Id. However, whether the State's conduct constitutes a breach of the plea agreement and whether the breach is material and substantial are questions of law. Id. We determine questions of law independently of the circuit court. Id. The determination of law whether a breach occurred and whether the breach was substantial and material requires a careful examination of the facts. Id. at ¶27.
Guilty Plea -- Plea Bargain Breach
State v. Victor Naydihor, 2004 WI 43, affirming 2002 WI App 272, 258 Wis. 2d 746, 654 N.W.2d 479
For Naydihor: Philip J. Brehm
Issue/Holding:
¶9. Naydihor's ineffective assistance of counsel claim is premised on defense counsel's failure to object to an alleged breach of a plea agreement. Under the familiar standard of Strickland v. Washington, 466 U.S. 668 (1984), the defendant must establish both that counsel's performance was deficient and that he was prejudiced as a result of that deficient performance. State v. Gordon, 2003 WI 69, ¶22, 262 Wis. 2d 380, 663 N.W.2d 765. Accordingly, the threshold inquiry on Naydihor's ineffective assistance of counsel claim is whether the State's actions constituted a breach of the plea agreement. If the State did not breach the plea agreement, then the failure of Naydihor's counsel to object did not constitute deficient performance, and the circuit court correctly ruled that Naydihor was not entitled to a Machner hearing.

¶10. This court set forth the standards for reviewing an alleged breach of a plea agreement in State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733:

[A]n accused has a constitutional right to the enforcement of a negotiated plea agreement. . . . A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. When the breach is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing.
Id., ¶¶37-38. 11. Whether the State breached a plea agreement is a mixed question of fact and law. The precise terms of a plea agreement between the State and a defendant and the historical facts surrounding the State's alleged breach of that agreement are questions of fact. Id., ¶2. On appeal, the circuit court's determinations as to these facts are reviewed under the clearly erroneous standard. Id., ¶20. Whether the State's conduct constitutes a material and substantial breach of the plea agreement is a question of law that this court reviews de novo. Id. A breach is material and substantial when it "defeats the benefit for which the accused bargained." Id., ¶38.
Guilty Plea -- Plea Bargain Breach
State v. Brian W. Sprang, 2004 WI App 121
For Sprang: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶14 Our supreme court recently set forth the standards for reviewing an alleged breach of a plea agreement in Naydihor:
[A]n accused has a constitutional right to the enforcement of a negotiated plea agreement. . . . A prosecutor who does not present the negotiated sentencing recommendation to the circuit court breaches the plea agreement. An actionable breach must not be merely a technical breach; it must be a material and substantial breach. When the breach is material and substantial, a plea agreement may be vacated or an accused may be entitled to resentencing.

Whether the State breached a plea agreement is a mixed question of fact and law. The precise terms of a plea agreement between the State and a defendant and the historical facts surrounding the State’s alleged breach of that agreement are questions of fact. On appeal, the circuit court’s determinations as to these facts are reviewed under the clearly erroneous standard. Whether the State’s conduct constitutes a material and substantial breach of the plea agreement is a question of law that this court reviews de novo. A breach is material and substantial when it “defeats the benefit for which the accused bargained.”

Id., ¶¶10-11 (citing State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733)
Guilty Plea -- Plea Bargain Breach
State v. John D. Williams, 2002 WI 1, affirming 2001 WI App 7, 241 Wis. 2d 1, 624 N.W.2d 164
For Williams: John A. Pray, Remington Center
Issue/Holding: The terms of the plea agreement and the relevant state's conduct are questions of fact, reviewed deferentially; whether that conduct amounts to a material and substantial breach is a question of law, reviewed independently. ¶4. The court clarifies, in the face of prior conflicting lower court opinions, the viability of this approach, ¶9, rejecting in the process two "tangential[]" claims. First, the state argues that, because the defendant must show a breach by clear and convincing evidence, he or she must similarly persuade the appellate court. ¶13. The court doesn't buy it: the burden of persuasion is directed to the fact-finder, not the appellate court. ¶12; "we do not graft the clear and convincing evidence burden of persuasion to the standard of review applied to questions of law in breach of plea agreement cases." ¶15. Second, the defendant invokes the "close case" rule -- where it is difficult to discern whether the state undermined the plea agreement, the operative principle is that plea agreements are construed in favor of the defendant; thus, in the event of uncertainty as to a breach, the defendant nonetheless prevails. ¶17. The court rejects this argument, for much the same reasons as it rejected the state's mirror-image claim. ¶19. In sum:
¶20. For the reasons set forth, we review the circuit court's determination of historical facts, such as the terms of the plea agreement and the State's conduct that allegedly constitutes a breach, under the clearly erroneous standard of review and then determine whether the State's conduct constitutes a substantial and material breach of the plea agreement as a question of law. Consequently, we reject the clear and convincing evidence rule and the close case rule.
Guilty Plea -- Plea Offer -- Misadvice, Later Corrected, as to Maximum Punishment
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue/Holding: The conviction isn't reversible in the interest of justice, where defendant rejected a plea bargain offer after his attorney gave him erroneous information as to the maximum penalty, but later and still before trial provided the correct information: "We conclude that the error regarding the maximum penalty of the plea offer was corrected and English-Lancaster was provided the correct information prior to trial and still elected to proceed to trial." ¶30.
Guilty Plea -- Plea Withdrawal
State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶12. This case involves questions of law and constitutional fact. The determination of who has the ultimate burden of proof and whether that party has satisfied the requisite burden of proof are questions of law that we review independently. Currie v. DILHR, 210 Wis. 2d 380, 387, 565 N.W.2d 253 (Ct. App. 1997). The determination of whether a plea is knowingly and intelligently entered presents a question of constitutional fact. State v. Bollig, 2000 WI 6, ¶13, 232 Wis. 2d 561, 605 N.W.2d 199. Questions of constitutional fact require a two-part review. First, we look to the historical and evidentiary facts as found by the trial court and review those findings under a clearly erroneous standard. State v. Hajicek, 2001 WI 3, ¶15, 240 Wis. 2d 349, 620 N.W.2d 781. Second, we independently review the trial court's determination of constitutional fact. Id. When a defendant seeks to withdraw a plea after sentencing, he or she must show by clear and convincing evidence that the withdrawal of the plea is necessary to correct a manifest injustice. State v. Schill, 93 Wis. 2d 361, 383, 286 N.W.2d 836 (1980).
Guilty Plea -- Plea Withdrawal -- Pre-Sentence
State v. Todd W. Timblin, 2002 WI App 304
For Timblin: Alex Flynn
Issue/Holding:
¶19. The decision to accept conviction via a voluntary plea is a grave and solemn act and should not be lightly treated. State v. Damaske, 212 Wis. 2d 169, 191, 567 N.W.2d 905 (Ct. App. 1997). Nevertheless, prior to sentencing, a motion to withdraw a guilty plea should be freely allowed if the defendant presents a "fair and just reason" to justify the withdrawal. State v. Garcia, 192 Wis. 2d 845, 861, 532 N.W.2d 111 (1995). "But 'freely' does not mean automatically. A fair and just reason is some 'adequate reason for defendant's change of heart ... other than the desire to have a trial.'" Id. at 861-62 (citation omitted).

¶20. While the "fair and just" reason test is a liberal test, the defendant must still demonstrate a "genuine misunderstanding of the plea's consequences" or "haste and confusion in entering the plea" or "coercion on the part of trial counsel." State v. Shimek, 230 Wis. 2d 730, 739, 601 N.W.2d 865 (Ct. App. 1999). It is within the trial court's discretion to determine whether a defendant's reason adequately explains his or her change of heart. State v. Kivioja, 225 Wis. 2d 271, 284, 592 N.W.2d 220 (1999). We review a trial court's discretionary decision under the erroneous exercise of discretion standard. Thus, we will uphold a discretionary decision if the circuit court reached a reasonable conclusion based on the proper legal standard and a logical interpretation of the facts. Id.


Standard of Review -- Habeas Petition

Habeas Petition (and Laches)
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals
For Coleman: Brian Kinstler
Issue/Holding:
¶17      We must determine whether the court of appeals erred when it concluded the delay was unreasonable and presumed that the State had proven the prejudice element of its laches defense. We independently review the "legal issues arising in the context of a petition for habeas corpus." State ex rel. Marberry v. Macht, 2003 WI 79, ¶8, 262 Wis.  2d 720, 665 N.W.2d 155; see also State ex rel. Hager v. Marten, 226 Wis.  2d 687, 694, 594 N.W.2d 791 (1999). The question of whether laches applied to Coleman's petition requires a determination of the reasonableness of the delay in bringing the issue before the court; a determination that the State did not have knowledge that Coleman would be bringing this claim; and a determination of whether the State suffered prejudice due to the delay. State v. Prihoda, 2000 WI 123, ¶37, 239 Wis.  2d 244, 618 N.W.2d 857. Reasonableness is a question of law based upon factual findings. See Lohr v. Viney, 174 Wis.  2d 468, 477-78, 497 N.W.2d 730 (Ct. App. 1993). When the facts are known, we independently review reasonableness as a question of law. State ex rel. McMillian v. Dickey, 132 Wis.  2d 266, 277, 392 N.W.2d 453 (Ct. App. 1986). Prejudice is also a legal conclusion based on the facts surrounding the issues underlying the petition. See Lohr, 174 Wis.  2d at 477. If the defense of laches is proved, whether to apply laches and dismiss the habeas petition is left to the discretion of the court of appeals. See id. at 478.
Habeas Petition
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding:
¶11      A circuit court’s order denying a petition for a writ of habeas corpus presents a mixed question of fact and law. Factual determinations will not be reversed unless clearly erroneous. However, whether habeas corpus relief is available to the petitioner is a question of law that we review de novo. State v. Pozo, 2002 WI App 279, ¶6, 258 Wis.  2d 796, 654 N.W.2d 12.  In this case, the procedural history is not in dispute. See Carmain v. Affiliated Capital Corp., 2002 WI App 271, ¶11, 258 Wis. 2d 378, 654 N.W.2d 265.

Standard of Review -- Harrison-Middleton Hearing

Harrison-Middleton Hearing
State v. Christopher Anson, 2005 WI 96, reversing in part, affirming in part, 2004 WI App 155
For Anson: Stephen J. Watson
Issue/Holding1:
¶26      … (W)e need not decide whether the State may call the defendant or his attorney during a hearing to determine whether the defendant was impelled to testify because we conclude a Harrison hearing is not an evidentiary hearing.  Rather, we conclude that a Harrison hearing is a paper review, focusing on the entire record before the circuit court.

¶30      … (W)e hold that a Harrison hearing is a paper review during which a circuit court makes findings of historical fact based on the record.

¶31      The circuit court should consider the entire record in "'assess[ing] [the] defendant's reaction to the use of his confession at trial . . . .'"  Id. at 225 n.13 (quoting Spencer, 424 P.2d at 720) (first alteration added).  Although the circuit court should make findings of fact based on the entire record, we see no need for the court to take additional evidence.  As such, we overrule the court of appeals' decision in Middleton, to the extent it holds that the circuit court may conduct a full evidentiary hearing when engaging in a Harrison analysis. 

¶32      Further, we conclude that when making its findings of fact, the circuit court may make credibility determinations based on testimony and events appearing in the record. …

¶33     However, we hold that the circuit court may not rely on its own personal observations of events not contained in the record. …

¶35     Once a circuit court has made the requisite findings of historical fact based on the entire record, it must engage in a Harrison analysis and determine, as a matter of law, whether, based on those historical facts, the State proved that its prior constitutional violation did not impel the defendant to testify. …

Issue/Holding2:
¶40     … (W)e conclude that when a defendant alleges that his trial testimony was impelled by the State's illegal introduction of evidence unconstitutionally obtained, the State bears the burden of proving beyond a reasonable doubt that the prior constitutional violation did not impel the defendant's testimony.

Standard of Review -- Implicit Findings of Fact

Standard of Review: Implicit Findings of Fact – No Requirement Trial Court Explain Credibility Determination
State v. Corey E. Young, 2009 WI App 22, PFR filed 1/7/09
For Young: Jeffrey W. Jensen
Issue/Holding: A trial court isn’t required to articulate reasons why it finds one witness more credible than another:
¶19      As the State correctly points out, it is well-established that there is no requirement for a trial court to utter precise “‘magic words’” while setting forth its findings of facts. See Monson v. Madison Family Inst., 162 Wis. 2d 212, 215 n.3, 470 N.W.2d 853 (1991) (citing Englewood Cmty. Apartments Ltd. P’ship v. Alexander Grant & Co., 119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984)). “An implicit finding of fact is sufficient when the facts of record support the decision of the trial court.” State v. Echols, 175 Wis. 2d 653, 672, 499 N.W.2d 631 (1993); see generally Chernetski v. American Family Mut. Ins. Co., 183 Wis. 2d 68, 80, 515 N.W.2d 283 (Ct. App. 1994) (“A trial court finding of ultimate fact need not be supplemented by commentaries on the evidence or reasons for which the findings are made.”).

¶20      Here, the trial court’s implicit finding was that Young’s testimony that he requested counsel was not credible. Our review of the record supports this finding. Because this implicit finding is sufficient, the trial court was not required to supplement its finding with further commentary.

Standard of Review – Implicit Findings of Fact
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶24      … We assume the circuit court implicitly makes those findings necessary to support its decision, and we accept those implicit findings if they are supported by the record. Town of Avon v. Oliver, 2002 WI App 97, ¶23, 253 Wis. 2d 647, 644 N.W.2d 260. It is implicit in the court’s decision here that Mark made the oral statement for the same reasons he made the written statement—the warning on the written statement of the consequences of failing to truthfully report his conduct. We do not look for evidence or inferences from the evidence that support a conclusion contrary to that reached by the circuit court.

Standard of Review -- Interest of Justice

Interest of Justice Review of Unpreserved Error: Prosecutor’s Improper Closing Argument
State v. Robert H. Weiss, Jr., 2008 WI App 72
For Weiss: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶16      The remaining question is whether the prosecutor’s improper argument warrants a reversal here. Weiss has brought this appeal as a claim in the interest of justice, and argues that though his trial counsel did not object to the argument, we should nevertheless reverse. See State v. Neuser, 191 Wis. 2d 131, 140, 528 N.W.2d 49 (Ct. App. 1995) (we have discretion to reverse on a waived error if the real controversy has not been fully tried). Weiss submits that the prosecutor’s miscon