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    Wisconsin Lawyer
    May 14, 2021

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Bail – Application of Bail Money to Payment of Restitution

    State v. Jones, 2021 WI App 15 (filed 17 Feb. 2021) (ordered published 31 March 2021)

    HOLDING: The circuit court erroneously applied bail money from dismissed cases to the payment of restitution in other cases (all of which were resolved as a part of a global plea agreement).

    SUMMARY: Jones was charged in five separate cases arising out of a series of thefts. In this synopsis, these cases are referred to as cases A, B, C, D, and E. In a plea agreement encompassing all the cases, Jones agreed to enter no-contest pleas in cases C, D, and E. The parties also agreed that cases A and B would be dismissed and read in at sentencing.

    Jones further agreed to pay restitution on the charges to which he pleaded no contest. No restitution was claimed on the two dismissed cases (A and B). The circuit court applied bail money that had been posted in cases A and B to amounts owed for restitution and costs in the cases to which Jones pleaded no contest.

    In a postconviction motion, Jones sought return of the bail money in cases A and B, which had actually been posted by third parties. The circuit court denied the motion. In an opinion authored by Judge Hruz, the court of appeals reversed.

    The court of appeals first addressed the issue of Jones’ standing to challenge the distribution of the bond money that had been posted by third parties on his behalf. It concluded that Jones did indeed have standing to raise this challenge. “In State v. Iglesias, 185 Wis. 2d 117, 517 N.W.2d 175 (1994), our supreme court held that a defendant ‘has a sufficient “personal stake” in the terms of her own bail and sentence so as to give her standing’ regardless of who actually posted the bail. Id. at 132-33. ‘[U]nder Wisconsin law, money posted for bail, irrespective of its source, is conclusively presumed to be the defendant’s money.’ Id. at 130-31 (citations omitted)” (¶ 17).

    Turning to the merits, the court concluded that “Wis. Stat. § 969.03(5) (2017-18) requires that any bond money posted shall be returned to the payor once a complaint against the defendant is dismissed, even if the underlying offenses comprising that criminal action are read in at sentencing for a different case” (¶ 1). The court of appeals remanded the matter to the circuit court for the latter to order the refund of the bail money in question.

    In a footnote, the court indicated that “[g]iven the facts of these cases, we need not address whether the same result obtains when the circuit court does order restitution for a dismissed and read-in offense from a separate criminal case that is resolved as part of a global plea agreement” (¶ 29 n.12).

    Postconviction Proceedings – Machner Hearings – Remote Testimony by Trial Counsel

    State v. Atwater, 2021 WI App 16 (filed 4 Feb. 2021) (ordered published 31 March 2021)

    HOLDING: The circuit court record did not demonstrate the use of appropriate discretion when the circuit court judge denied the defendant’s request to have his trial counsel testify remotely at a postconviction Machner hearing to challenge the effectiveness of trial counsel.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: Atwater filed a postconviction motion for plea withdrawal based on ineffective assistance of counsel. He asked the circuit court to allow his trial counsel to testify via telephone at the Machner hearing, explaining that trial counsel had moved to Missouri, would be required to miss multiple days of work and arrange for childcare if she had to appear in person at the hearing, and would not be reimbursed for travel expenses by the Wisconsin State Public Defender because she was no longer employed by that agency.

    The prosecutor objected to this request because of the importance of trial counsel’s testimony at a Machner hearing and the potential difficulties posed by a telephonic cross-examination (including the difficulty of trying to examine the attorney about documents).

    The circuit court denied the request for remote testimony. The order did not identify the legal standards the court was applying and did not specifically identify the basis for the decision other than the court’s agreement with the objections the prosecutor raised. The parties agreed that the defendant could not prevail on his ineffective-assistance claim without trial counsel’s testimony. SeeState v. Machner¸92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), which provides a general rule that the defendant must present trial-counsel testimony during a postconviction hearing on counsel’s alleged ineffectiveness (see ¶ 9).

    Ultimately, the circuit court denied the defendant’s motion for postconviction relief on the sole basis that trial counsel would not appear in person at the hearing.

    In an opinion authored by Judge Graham, the court of appeals reversed. The court concluded that Wis. Stat. sections 885.56 and 885.60 are the statutes that govern remote proceedings, including postconviction hearings. Section 885.56 sets forth criteria to guide the court’s exercise of discretion when considering a motion to permit the use of videoconferencing technology, and section 885.60 sets forth a procedure for such a motion in any criminal case. A circuit court has broad discretion to allow or disallow testimony by videoconferencing in a criminal case (see ¶ 29).

    However, in this case, the court of appeals concluded that the record does not reflect whether the circuit court properly exercised its discretion when considering the defendant’s motion (see ¶ 1). It did not see any indication in the record that the circuit court considered the reality that, by denying the defendant’s motion, it was effectively foreclosing his only option to prove his allegations of ineffective assistance. The record did not demonstrate whether the court gave any consideration to the fact that trial counsel lived out of state.

    In short, “based on the unusual record here, we cannot say that the 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” (¶ 32) (internal quotations and citation omitted).

    The court of appeals remanded the matter to the circuit court. “On remand, if Atwater continues to request remote testimony at a Machner hearing, the court must consider that request, exercising its discretion in light of the criteria and procedures found in Wis. Stat. §§ 885.56 and 885.60” (¶ 33).

    Sentencing – Religious Beliefs – Eighth Amendment – Gallion

    State v. Whitaker, 2021 WI App 17 (filed 4 Feb. 2021) (ordered published 31 March 2021)

    HOLDING: The sentence the circuit court imposed did not violate the defendant’s First, Fourteenth, or Eighth Amendment rights.

    SUMMARY: The defendant pleaded no contest to sexually assaulting a female relative in 2007 when he was 14. The victim described numerous assaults in 2005 and 2007; additional assaults involving two other female relatives were read in for sentencing. The defendant and his family lived in an Amish community at the time of the offenses.

    Although the defendant had been cooperative and was now living productively in an Amish community in another state, the court sentenced him to two years of confinement followed by two years of extended supervision. The sentencing record is replete with references to the Amish community and allegations that it had shielded the defendant and others from the legal system. The judge intended the sentence to “send the message” to the defendant and the Amish community that “this is totally unacceptable behavior” (¶ 14). On appeal, the defendant alleged that the sentence violated various rights.

    The court of appeals affirmed in an opinion authored by Judge Blanchard. First, the court held that the sentence did not violate the defendant’s rights under the First and Fourteenth Amendments by improperly considering his “religious beliefs” and associations
    (¶ 19). The court’s long, careful discussion closely considers the arguments advanced by the parties and the circuit court’s assessment of the record.

    “[W]e conclude that Whitaker’s argument fails because the court identified a reliable nexus, which the court within its sentencing discretion could rely on, between the circumstances of the sexual assaults that Whitaker committed and what we assume are constitutional rights potentially infringed by the challenged sentencing rationale. Taking into account undisputed factual premises, the circuit court relied in part on the legitimate rationale of protecting children in the Amish community by encouraging its adults to intervene and prevent child sexual assaults, including communicating with authorities as needed” (¶ 19). The discussion is necessarily fact intensive and focused on the sentencing court’s exercise of discretion.

    Nor did the sentence violate the Eighth Amendment, given the defendant’s age at the time of the offense and that he posed “zero risk” of reoffending (¶ 60). The four-year sentence was a “small fraction” of the maximum he could have received (¶ 57). Finally, the sentencing record revealed that the circuit court provided sufficient explanations for both components of the sentence it imposed, as required by State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.

    Competency to Stand Trial – Involuntary Medication

    State v. Green, 2021 WI App 18 (filed 25 Feb. 2021) (ordered published 31 March 2021)

    HOLDINGS: 1) The state failed to meet its burden on an order for involuntary medication, which also invalidated a later order lifting the automatic stay of that order. 2) The court lacked the authority to “toll” the statutory period in which a defendant must be found competent to stand trial.

    SUMMARY: Green was charged with first-degree intentional homicide. Defense counsel challenged Green’s competency to stand trial based on his mental illness. This appeal involved a number of issues relating to the law governing the involuntary medication of incompetent defendants.

    The court of appeals reversed the circuit court in an opinion authored by Judge Kloppenburg. First, the state failed to meet its evidentiary burden on the order for involuntary medication, as set forth in Sell v. United States, 539 U.S. 166 (2003). Sell requires a showing that 1) the government has an important interest in prosecuting a serious crime, 2) forced medication would “significantly further” that interest by rendering the defendant competent to stand trial, 3) involuntary medication is necessary because less intrusive means are unavailable, and 4) medication is “medically appropriate” (¶ 16).

    The first issue was undisputed. Although the parties disputed the applicable standard of review on the second, third, and fourth factors, the court found no need to resolve that issue because it would “reach the same conclusion regardless of whether we apply ‘clearly erroneous’ or ‘de novo’ review” (¶ 20).

    Examining the record, the court held that the state had met its burden on the third factor but failed on the second and fourth factors (see ¶ 29). The failure regarding the second factor involved the effectiveness of a harsh drug (Haldol) that carried severe side effects (for example, sedation, slurred speech) that might affect the defendant’s ability to assist counsel (see ¶ 37). Nor was there sufficient evidence to support a finding on the fourth factor, namely, that any proposed treatment plan was medically appropriate (see ¶ 40). The court emphasized that the pertinent state statutes meet constitutional requirements (see ¶ 48).

    The court of appeals also held that the trial judge lacked authority to “toll” the statutory period in which Green must be found competent to stand trial. The text of Wis. Stat. section 971.14(5)(a) “unambiguously states that commitment to bring a defendant to competency is not to exceed twelve months from the date the defendant is committed to the department,” regardless of the maximum sentence for the most serious charged offense (¶ 54). After 12 months, an incompetent defendant must be discharged (see ¶ 55).

    Finally, the court held that the circuit court had authority to hear the state’s motion to lift the automatic stay of the involuntary-medication order. The defendant’s arguments lacked authority to the effect that the circuit court lacked competency to hear the motion (see ¶ 75).

    Real Property

    Rezoning – Mineral Rights

    Lakeland Area Prop. Owners Ass’n v. Oneida Cnty., 2021 WI App 19 (filed 23 Feb. 2021) (ordered published 31 March 2021)

    HOLDINGS: The rezoning for a gravel mine complied with the statutes, and the circuit court properly dismissed a claim that the plaintiff owned subsurface mineral rights.

    SUMMARY: County Materials Corp. (CMC) operated a gravel mine in Oneida County. It petitioned the county to rezone an adjacent 10-acre parcel so that it could conduct nonmetallic mining on that property as well. The town and the county eventually approved CMC’s petition, granting a conditional use permit. Lakeland Area Property Owners Association sued the county on grounds that the rezoning violated applicable statutes and was “inconsistent with the applicable comprehensive plan” (¶ 7). The circuit court granted summary judgment against Lakeland.

    The court of appeals affirmed in an opinion authored by Judge Stark. First, the court rejected Lakeland’s claims that the rezoning violated Wis. Stat. section 66.1001(3). The circuit court properly applied the town’s 2018 comprehensive plan rather than its 1999 plan in a manner that complied with the statute (see ¶¶ 22, 26). Moreover, the rezoning was consistent with that plan (see ¶ 33).

    Lakeland also asserted that it owned the subsurface mineral rights on the affected property. Applying Wis. Stat. section 706.057(3), Lakeland’s rights lapsed because it had not used its property interest during the previous 20 years. The court of appeals rejected Lakeland’s strained statutory interpretation as one that would create “an absurd result” (¶ 39).

    “It is undisputed that Lakeland’s predecessors in interest did not use their mineral rights at any point before July 1, 1984, but they subsequently used their mineral rights by recording a statement of their claims on January 12, 1987. That use prevented the mineral rights from lapsing at that time, pursuant to § 706.057(3)(b). However, it is also undisputed that Lakeland’s predecessors in interest did not use their mineral rights at any time during the twenty-year period following January 12, 1987. As a result, their interests in the mineral rights lapsed on January 13, 2007. It is further undisputed that neither Lakeland nor its predecessors cured that lapse pursuant to Wis. Stat. § 706.057(5) before Nationwide, CMC’s affiliate, recorded statements of claim regarding the mineral rights in November 2019” (¶¶ 42-43).

    Finally, the court rejected Lakeland’s argument that the statute was unconstitutional as applied, constituting a taking without just compensation. This discussion was principally centered on Texaco v. Short, 454 U.S. 516 (1982). The court of appeals distinguished Wisconsin case law.

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