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Supreme Court accepts two new cases

Madison, Wisconsin - July 22, 2009

The Wisconsin Supreme Court has voted to accept two new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals’ opinions/certification memos available online for the newly accepted cases are hyperlinked.

2009AP3-CR State v. Travis Vondell Cross
In this case, the state asks the Supreme Court to bypass the Court of Appeals to decide how the law should apply to a defendant who entered a guilty plea after being wrongly informed about the potential maximum sentence for his crime.

Some background: In December 2005, Travis Vondell Cross was charged with first-degree sexual assault of a child under the age of 13. He subsequently entered a guilty plea to a reduced charge of second-degree sexual assault of a child.

The trial court engaged in a personal colloquy with Cross and accepted the guilty plea. It is undisputed that at the time of the plea, the defendant misunderstood, and was misinformed by both the trial court and defense counsel, that he faced 40 years imprisonment, including 25 years initial confinement. In fact, however, he faced maximum imprisonment of 30 years, including 20 years initial confinement. Cross was sentenced to 25 years initial confinement and 15 years extended supervision, to be served consecutively to an ongoing prison sentence in Minnesota.

The trial court denied Cross’ motion for plea withdrawal but sentenced him to 20 years initial confinement plus 10 years extended supervision to be served consecutive to the Minnesota prison sentence.

The state contends there is an apparent conflict in previous Court of Appeals’ decisions that only the Supreme Court can resolve. A defendant is not automatically entitled to a plea withdrawal based on a mistaken belief at the time of a guilty plea is entered that he or she faced a greater potential punishment that he or she actually faced, according to the state. Plea withdrawal is not warranted in this case to correct a manifest injustice, the state adds.

Cross contends the trial court erred by not allowing him to withdraw a guilty plea. The plea was not entered knowingly voluntarily and intelligently as required by Wis. Stat. § 971.08 (1) (a). He contends the case is appropriate for the Court of Appeals to decide, based on previous decisions.

A decision by the Supreme Court would clarify law in this area and resolve an issue that is likely to recur. From St. Croix County.

2007AP2827 State v. Kleser
This case, involving a first-degree intentional homicide, examines the proper scope and nature of a preliminary examination and reverse waiver hearing in a juvenile original jurisdiction case.

Some background: Corey Kleser was 15 years old when charged with first-degree intentional homicide for allegedly beating a 57-year-old man with a hammer and stabbing him in the neck with a pair of scissors.

First-degree intentional homicide is one of the offenses over which an adult criminal court has exclusive jurisdiction, absent a reverse waiver. While being held on the homicide charge, Kleser also was charged with substantial battery and battery by a prisoner after allegedly hitting a fellow inmate at a juvenile detention center. Battery by a prisoner is also an offense that is assigned to an adult criminal court, unless transferred to juvenile court via a reverse waiver.

Kleser waived his right to a preliminary hearing on all three charges, and the judge bound him over for trial. The circuit corut held a reverse waiver hearing that ended up taking all or part of five separate days in the fall of 2007. During the hearing, a defense psychologist testified regarding Kleser’s description of the events and opined that Kleser had killed the victim out of rage in response to sexual advances. The state’s psychological expert was not allowed to question Kleser about the facts of the incidents.

The circuit court concluded that Kleser had met the requirements in Wis. Stat. § 970.032 (2) (a-c) for transferring the matter to juvenile court. The court’s findings included comments from the defense psychologist beyond information included in the criminal complaint, such as possible evidence that Kleser was possibly protecting himself in both the homicide and battery incidents.

The state asked the Court of Appeals to determine if the reverse waiver hearing had been proper. The Court of Appeals concluded that a reverse waiver hearing should be limited to facts already found at the preliminary examination or set forth in the criminal complaint and sent the case back to the circuit court for another reverse waiver hearing to be a “summary proceeding,” not a trial of the merits.

The Court of Appeals reasoned that it would be “absurd” to allow the juvenile to challenge the facts of the offense as alleged in the criminal complaint after the juvenile had just stipulated to those facts by waiving a preliminary hearing held before the reverse waiver hearing. The proper place for the juvenile to challenge the facts as alleged by the state is at the preliminary examination so that the circuit court does not end up making contradictory findings, the Court of Appeals concluded.

Kleser asks the Supreme Court to reinstate the circuit court’s order transferring his two criminal cases to juvenile court, which the Court of Appeals reversed. He contends the Court of Appeals’ decision alters the summary nature of preliminary examinations. Although juvenile defendants, like other defendants, have historically not presented evidence of mitigating facts or affirmative defenses at preliminary examinations, they will now be forced to do so in order to avoid a possible determination that their desired evidence contradicts the allegations of the criminal complaint and may not be admitted at the reverse waiver hearing. In particular, Kleser asks the Supreme court to review two questions: (1) did the Court of Appeals correctly interpret Wis. Stat. § 970.032 to require that any evidence concerning the facts of the crime can be introduced only at the preliminary hearing, and (2) did the trial court abuse its discretion in considering evidence introduced by Kleser’s expert that contradicted the state’s version of the facts, or when it substantively relied upon the expert’s testimony?

The state asserts that the Court of Appeals correctly interpreted the reverse waiver statute. It nonetheless asks the Supreme Court to consider two additional questions: (1) did the defense psychologist’s testimony constitute an improper opinion regarding the truthfulness of the juvenile’s statements concerning the facts of an alleged offense, and (2) may a circuit court consider the full testimony of a defense psychologist regarding a juvenile’s statements concerning the facts of an alleged offense, after prohibiting the state’s psychological expert witness from interviewing the juvenile defendant regarding the facts of the relevant incidents? From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. As the state’s law-developing court, the Supreme Court exercises its discretion to consider for review only those cases that fit certain criteria, but these criteria neither control nor fully measure the Court’s discretion (see Wis. Stat. (rule) § 809.62).

2008AP2078-CRNM State v. Faulkner

2008AP163 Town of Perry v. DSG Evergreen
2008AP1209-CR State v. Davis
2008AP1587 Dane Co. v. Michael T.C.
2008AP3182 Ottman v. Town of Primrose
2009AP1029-W Taylor v. Mahoney

2008AP1789-CR State v. Borelli

Fond du Lac
2008AP1032/33 State v. Johnson
2008AP2696-CRNM State v. Austin

Green Lake
2008AP1208-CRNM State v. Reyna

2008AP507-CR State v. Laguna

2008AP195-CR State v. Wade
2008AP1485 Westphal v. Police & Fire Commission

2008AP940-CR State v. Nichols
2009AP369-W Pedersen v. Hompe

2008AP25-CRNM State v. Robinson
2008AP458-CR State v. Baemon
2008AP484 Industrial Risk v. Am. Engineering Testing
2008AP568-CR State v. Arlington
2008AP798-CR State v. Choice
2008AP814-CR State v. Smith
2008AP901-CR State v. Moore
2008AP1047 State v. Jones
2008AP1247-CRNM State v. Tate
2008AP1757-CR State v. McClellan
2008AP1831 State v. Williams
2008AP1890-CRNM State v. Bell
2008AP2664-CR State v. Huff
2008AP2777 State v. Ellis
2009AP121-CRNM State v. Boyd

2008AP662 Co. of Oneida v. Schiffman
2008AP2330 Oneida Co. DHS v. Nicole W.

2007AP2045 Constructino Mortgage v. INV. VWH Dev. - Justice Annette Kingsland Ziegler did not participate.
2008AP1675 Village of Fredonia v. Peltier

2008AP250/54 Sabol v. Village of Mt. Pleasant
2008AP2480 State v. Phaheem B.

2007AP1542 Parker v. WPCF

2009AP1101-W Dettlaff v. Wright

2008AP1705 Ehnle v. State Farm

2008AP487-91-CR State v. Austin - Justice N. Patrick Crooks did not participate.

2007AP427-CR State v. Day - Justice Annette Kingsland Ziegler did not participate.
2008AP1648-CR State v. Lobley - Justice Annette Kingsland Ziegler did not participate.

2008AP1717/18-CR State v. Braun
2008AP1879-CR State v. Hasselkus
2009AP870-W Wolfe v. Grams

2008AP1549 Beduhn v. U.S. DHSS - Justice Ann Walsh Bradley did not participate.

2007AP1328 Thompson v. Schulte
2008AP424 Johnson v. Wood Co.

Tom Sheehan
Court Information Officer
(608) 261-6640

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