Criminal Procedure
Sentencing – Claim That Sentencing Court Improperly Relied on Information in Defendant’s Compelled Statements to Probation Agent Rejected
State v. Alexander, 2015 WI 6 (filed 27 Jan. 2015)
HOLDING: The circuit court did not rely on the defendant’s compelled statements to his probation officer when the court sentenced the defendant in this case.
SUMMARY: On this appeal from a forgery conviction, defendant Alexander contended that his Fifth Amendment right not to be sentenced based on an improper factor was violated at sentencing because compelled, self-incriminating statements he made to his probation agent were appended to the presentence investigation report (PSI), which the circuit court reviewed. The statements related to additional forgeries that were not charged in this case. In an unpublished decision, the court of appeals reversed and remanded for a new sentencing; it did so based on ineffective assistance of counsel – an issue raised sua sponte by the appellate court.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
In a decision authored by Justice Roggensack, the supreme court reversed the court of appeals. It began its analysis by noting that the state did not contest Alexander’s assertion that his statements to his probation agent were compelled; therefore, in this decision, the supreme court assumed, without deciding, that they were compelled. To establish circuit court error, Alexander had to prove by clear and convincing evidence that the circuit court actually relied on his compelled statements when it sentenced him.
The supreme court concluded that Alexander failed in this regard and thus was not prejudiced by his attorney’s lack of objection to those statements. While it is true that at sentencing the circuit court referred to information about the other forgeries contained in the compelled statement, the record reveals that the circuit court actually used as sources of this information the victim’s statement as contained in the PSI as well as the crime victim impact statement of the bank’s fraud investigator (see ¶ 31).
“In sum, after reviewing the sentencing transcript as a whole and the court’s comments in denying Alexander’s motion for resentencing, we conclude that the circuit court relied on proper factors in imposing sentence and did not actually rely on Alexander’s compelled statements” (¶ 35).
Concurring opinions were filed by Justice Prosser, Justice Gableman, and Chief Justice Abrahamson (in whose concurrence Justice Bradley joined).
Substitution of Judge – Harmless-Error Rule Inapplicable When Judge Erroneously Presided Over Defendant’s Trial, Sentencing, and Postconviction Motions
State v. Harrison, 2015 WI 5 (filed 22 Jan. 2015)
HOLDINGS: 1) The defendant did not forfeit his right to substitute the judge assigned to his case and that judge erred in presiding over the defendant’s trial, sentencing, and postconviction motions. 2) This error was not subject to
harmless-error analysis.
SUMMARY: This case concerns Wisconsin’s substitution-of-judge statute. Wisconsin Statutes section 971.20(9) provides that when a timely request for substitution of judge has been filed in proper form, the substituted judge “has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.” However, if an agreement is signed by the defendant or his or her attorney, the prosecutor, the substituted judge, and the substituting judge, the substituted judge may return to the case. See Wis. Stat. § 971.20(11).
In this case, the defendant was charged in Clark County with burglary and several other crimes. There is only one circuit judge in that county. Before the preliminary hearing, the defendant filed a timely and proper request for substitution against the Clark County judge. A judge from a neighboring county was then assigned to preside over the preliminary hearing. At that hearing, the defendant was bound over for trial. The Clark County judge conducted the arraignment and continued to preside over the case through trial, sentencing, and postconviction motions, despite multiple defense requests that the Clark County judge not preside in the case. No agreement under section 971.20(11) consenting to the return of the Clark County judge was ever signed.
The defendant appealed and, in an unpublished decision, the court of appeals summarily reversed the conviction. In a unanimous decision authored by Chief Justice Abrahamson, the supreme court affirmed the court of appeals. Rejecting the state’s argument that the defendant had forfeited his right to substitute the Clark County judge because the defendant participated in the trial and sentencing and did not reserve the right to challenge the return of the Clark County judge to the case, the supreme court concluded that “[t]he defendant persisted with his substitution request throughout the proceedings and did not follow the procedure outlined in Wis. Stat. § 971.20(11) for abandoning his substitution request. Thus, the circuit court erred in presiding over the defendant’s trial, sentencing, and postconviction motions” (¶ 8).
Further, the supreme court declined to apply the harmless-error rule. Said the court, “application of a harmless error analysis in the present case would undercut Wis. Stat. § 971.20 by nullifying the defendant’s statutory right to request and obtain substitution without any showing of prejudice. The text of Wis. Stat. § 971.20 controls the disposition of the instant case. The statutory violation in the instant case is simply not amenable to harmless error review, and the case law does not permit us to apply a harmless error analysis. Thus, we decline to do so” (¶ 91).
Evidence
Daubert Rule – Effective Date – Wis. Stat. Chapter 980 Cases
State v. Alger, 2015 WI 3 (filed 20 Jan. 2015)
HOLDING: The Daubert evidentiary standard does not apply to Wis. Stat. chapter 980 discharge hearings for which the underlying commitment occurred before Feb. 1, 2011.
SUMMARY: Alger was committed as a sexually violent person under Wis. Stat. chapter 980 in May 2005. In 2011, Wisconsin adopted the Daubert standard [see Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993)], which modified the rules governing the admissibility of expert testimony in cases commenced after Feb. 1, 2011. Alger filed a petition for discharge in April 2011 and moved the court to apply the Daubert standard to the state’s expert evidence. The circuit court denied Alger’s motion on grounds that the discharge hearing was part of the underlying chapter 980 case, which had been commenced in 2005. The court of appeals affirmed. See 2013 WI App 148.
The supreme court affirmed in a majority opinion authored by Justice Ziegler. Closely parsing the terms “commence,” “actions,” and “special proceedings,” it held that Alger’s discharge petition fell under none of those categories. Instead, it was part of the underlying chapter 980 commitment, which took place in 2005.
“In light of the foregoing definitions and examples, Alger’s and Knipfer’s Chapter 980 discharge petitions do not ‘commence’ an ‘action’ or a ‘special proceeding’ because the discharge petitions could not exist without the initial commitments and are ‘a part of’ the initial commitments. Hence, even though the requests for discharge are seeking relief from commitments, the requests are necessarily dependent on and tethered to the original commitments. A discharge petition does not ‘start’ or ‘begin’ an ‘action’ or a ‘special proceeding’ but rather, it is more akin to a motion within an existing matter. A discharge proceeding is ‘incident to an existing action’ and does not stand alone or exist ‘entirely outside the original action’” (¶ 31).
The court also observed that the state’s expert testimony “may be admissible regardless of which standard applies” (¶ 21). Finally, applying rational-basis review (see ¶ 49), it also held that the failure to apply the Daubert standard did not violate equal protection or due process (see ¶ 59).
Chief Justice Abrahamson dissented, joined by Justice Bradley. Applying the majority’s own definition of “special proceeding,” they contended that “the most legally sound conclusion is that proceedings on a Chapter 980 petition for discharge are special proceedings” (¶ 63).
