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Wisconsin Supreme Court accepts five new cases

Madison, Wisconsin - April 15, 2015

The Wisconsin Supreme Court has voted to accept five new cases and has acted to deny review in a number of other cases. The case numbers, issues, and counties of origin of granted cases are listed below, as are hyperlinks to Court of Appeals’ decisions where available. Visit the Supreme Court and Court of Appeals Access website for more information about the status of any particular case.

2014AP678-80 State v. Valadez
This certification examines the degree of certainty necessary to show, for purposes of plea withdrawal under WIS. STAT. § 971.08(2), that a defendant is likely to suffer immigration consequences as a result of a guilty plea.

More specifically, the District II Court of Appeals asks how definite or imminent must deportation be in order for it to be “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy. Also, the Court of Appeals asks: If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?

Some background: In 2004 and 2005, Melisa Valadez was convicted of possession of cocaine, tetrahydrocannabinol (THC), and drug paraphernalia pursuant to a guilty plea. It is undisputed that, at the plea colloquy, the circuit court did not warn Valadez, as required by Wis. Stat. § 971.08(1)(c), that the plea and subsequent conviction might have adverse immigration consequences.

Valadez is a legal permanent resident (LPR); she is not a citizen. She has three children who are U.S. citizens. Under federal immigration law, Valadez is deportable because of her plea. See 8 U.S.C. § 1227(a)(2)(B)(i) (2012), which states that any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

Another consequence of her conviction is that federal statutes bar her re-entry if she travels outside the country. See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2012). Furthermore, Valadez must renew her LPR status every 10 years. Although she indicates that there is no federal statute deeming her ineligible for a renewal of her LPR status, or for naturalization as a U.S. citizen, her status as “deportable and ineligible for re-entry” implies that she would not be able to seek to renew her LPR status, much less become a citizen, without triggering deportation proceedings.

Valadez moved to withdraw her guilty plea on the grounds that she is unable to renew her residency, seek citizenship, or leave and re-enter the country. The state conceded that the court had failed to give Valadez the required warning, but contended that she failed to show that she is now subject to actual immigration proceedings. The circuit court denied Valadez’s motion to withdraw her plea because she had not shown that immigration proceedings were underway as a result of her plea.

The Court of Appeals also presents the question: If the defendant must wait until there are pending immigration proceedings against him or her, what effect does this have on the time line in which to challenge the plea? In State v. Romero-Georgana, 2014 WI 83, ___Wis. 2d ___, 849 N.W.2d 668, the Supreme Court cited to a now-repealed statutory 120-day time limit on motions under WIS. STAT. § 971.08(2) (1981-82) in its discussion of timeliness of motions to withdraw under § 971.08(2) vis-à-vis motions for post-conviction relief under WIS. STAT. § 974.06. Romero-Georgana, 849 N.W.2d 668, ¶67 n.14.

The parties have been asked to file briefs in this case after decisions in two other cases to be argued before the Wisconsin Supreme Court on April 21: State v. Ortiz-Mondragon, 2014 WI App 114, 358 Wis. 2d 423, 856 N.W.2d 339, and State v. Shata, 2013AP1437.

A decision in this case is expected to help establish the appropriate standard for plea withdrawal due to the likelihood of immigration consequences.

From Walworth County.

2014AP515-FT State v. Iverson
This felony traffic case examines whether a law enforcement officer may conduct a traffic stop when the officer has either a reasonable suspicion or probable cause to believe that a vehicle’s occupant has violated a non-traffic forfeiture offense.

Some background: Daniel Iverson moved to suppress evidence and dismiss charges against him for first offense operating a motor vehicle while intoxicated and driving with a prohibited alcohol concentration.

The circuit court granted Iverson’s motion, concluding that Trooper Michael Larsen lacked sufficient reasonable suspicion to stop Iverson.

Larsen testified that he was traveling northbound on Rose Street in the city of La Crosse at about 1 a.m. on Sept. 18, 2013, when he observed a silver Jeep. Larsen followed the Jeep and observed it drift within its lane toward the centerline and back, and stop at flashing yellow lights at two separate intersections where there was no observed traffic. Larsen then saw a cigarette butt being thrown from the passenger side of the car.

Larsen testified that he stopped Iverson’s vehicle because of the cigarette thrown out of the window. On cross examination, Larsen testified further: “[P]rior to the cigarette butt being thrown out of the vehicle, I didn’t feel at that point before that I had the reasonable suspicion to initiate a traffic stop on it. I was [going to] continue to follow the vehicle to observe more information.”

The circuit court stated that littering the cigarette butt was not the real reason for the stop, but rather was a pretext to allow the officer to investigate whether the driver was intoxicated and ordered that the evidence be suppressed. The State appealed and the Court of Appeals affirmed.

On Oct. 23, 2014, the state moved for reconsideration asserting that the Court of Appeals’ decision in Iverson was inconsistent with the Court of Appeals’ nearly simultaneous decision in State v. Qualls, No. 2014AP141-CR (Wis. Ct. App. Dist. II Oct. 8, 2014). The state also cited “relevant legal authority that recognizes the authority of state troopers to stop vehicles based upon a violation of Wis. Stat. § 287.81, which prohibits littering along a state highway.”

The Court of Appeals denied the state’s motion for reconsideration. The Court of Appeals said the issue is whether an articulable suspicion or probable cause of violation of a forfeiture that is not a violation of a traffic regulation is sufficient justification for a warrantless seizure of a citizen. The Court of Appeals ruled it was not.

The state argues that the Court of Appeals’ decision is inconsistent with other case law. The state notes that about the same time the Court of Appeals issued this decision, the Court of Appeals also released Qualls.

The state contends Qualls involved similar issues arising from a vehicle stop after a cigarette butt was thrown from a vehicle window. However, the state says the decision in that case was much different.

Both defendants challenged the traffic stop; Qualls sought to argue that the officer made a mistake of law, and his motion to suppress evidence was denied. A decision by the Supreme Court could help clarify the law in this area.

From La Crosse County.

2013AP2433-CR State v. LeMere
This child sex assault case examines whether defense counsel has an obligation to advise a defendant prior to a plea that the entry of the plea might ultimately lead to their lifetime commitment as a sexually violent person under Wis. Stat. ch. 980.

Some background: Stephen LeMere was convicted of first-degree sexual assault of a child under the age of 13 for an incident that occurred at his friend’s home. LeMere was accused of sexually assaulting a girl while holding a knife to her throat and threatening to kill her if she told any one.

LeMere said he had been drinking and had taken drugs and that he didn’t recall much of what had occurred that morning. He said he did recall holding the girl up against a refrigerator with his arm against her chest. He said he did not recall sexually assaulting her.

The state charged LeMere with four offenses: (1) first-degree sexual assault of a child under the age of 13, (2) second-degree reckless endangerment, (3) strangulation, and (4) suffocation. Pursuant to a plea agreement, LeMere pled guilty to the first-degree sexual assault, and the remaining three counts in this case, as well as two battery counts in another case, were dismissed and read in.

During the plea colloquy, the circuit court advised LeMere that if he would be incarcerated as a result of his guilty plea, the state could potentially file a Wis. Stat. ch. 980 petition for his commitment as a sexually violent person at the end of his initial confinement. The court asked twice whether LeMere had any questions or did not understand anything about this matter. LeMere responded on both occasions, “No, ma’am.”

The court accepted LeMere’s guilty plea. It subsequently sentenced him to 30 years of initial confinement and 15 years of extended supervision.

LeMere filed a post-conviction motion for plea withdrawal, alleging that his counsel had been ineffective for not advising him that he could be subject to a lifetime ch. 980 commitment if he pled guilty, and that his plea was unknowing and involuntary because of that lack of information. LeMere argued that if he had known that by pleading guilty he could be subject to a lifetime ch. 980 commitment, he would not have pled guilty.

LeMere contends that his post-conviction motion alleging these facts was sufficient to merit an evidentiary hearing under Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

The circuit court denied the motion without a hearing. It concluded that counsel had no obligation to advise LeMere about the possibility of a lifetime ch. 980 commitment because that was a collateral consequence of his conviction and that LeMere’s plea had been knowing and voluntary, as shown by the discussion the court had with him about the potential for a ch. 980 commitment. The Court of Appeals affirmed.

The Court of Appeals found the issue is governed by existing case law. State v. Myers, 199 Wis. 2d 391, 394, 544 N.W.2d 609 (Ct. App. 1996).

LeMere contends that the U.S. Supreme Court in Padilla v. Kentucky, 599 U.S. 356 (2010) rejected the distinction between direct and collateral consequences in deciding whether trial counsel has an obligation to advise a defendant of a result of a guilty plea. Thus, he believes that the Court of Appeals’ reliance on Myers is misplaced because the collateral consequence rationale employed in that decision has been rejected by the Supreme Court in Padilla.

In affirming the circuit court decision, the Court of Appeals explained that there was a clear distinction between the nearly automatic deportation at issue in Padilla and the mere possibility of a ch. 980 commitment, which would require the initiation of a separate proceeding and the state meeting the burden of proving additional facts beyond the fact of conviction.

LeMere asserts that this consequence is similar to the deportation consequence that the Padilla court found to require adequate advice from counsel. Thus, he argues that the Court of Appeals’ decision in Myers should be abrogated as either directly or indirectly undermined by Padilla.

The Supreme Court will likely decide in this case whether defense counsel has an obligation to advise a client about the possibility of a lifetime commitment under Wis. Stat. ch. 980, and if so, whether LeMere’s counsel was constitutionally ineffective for not doing so here.

From Eau Claire County.

2011AP2680-CR State v. Lynch
This sexual assault case examines whether defendants have a constitutional right to disclosure of privately held privileged records about their accuser’s mental health history and whether a witness may under certain circumstances still be allowed to testify, despite refusing to consent to an in camera review of the records.

Some legal background: The circuit court concluded that Patrick J. Lynch had made the required showing for an in camera review of mental health treatment records of a woman who accused him of sexually assaulting her when she was a young girl.

The Court of Appeals upheld the circuit court’s conclusion that because the woman refused to release her treatment records for an in camera review, State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), the court was required to exclude the woman’s testimony at trial.

Similar issues were before this court in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609; reconsideration granted 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1. The decision granting reconsideration in Johnson clarified that the court was deadlocked on the issue presented.

Some factual background: The woman alleged that when she was about seven or eight years old in the 1990s, the defendant repeatedly sexually assaulted her. She said the assaults occurred around the same time or shortly after she was repeatedly sexually assaulted by another man who was convicted of sexually assaulting her.

There are factual disputes about when the woman first made allegations against Lynch and whether she exhibits ongoing posttraumatic stress disorder (PTSD) related symptoms that have and/or still do impair her ability to accurately recall or describe pertinent events. Lynch’s preliminary hearing occurred about 20 years after the alleged assaults.

Lynch filed a motion seeking an in camera review of the alleged victim’s treatment records going back to 1990. He sought an in camera review of her mental health treatment records relating to two psychological treatment providers, arguing there was a reasonable likelihood that the treatment records contained probative, noncumulative evidence helpful to the defense. The circuit court agreed.

After the circuit court’s ruling, the alleged victim refused to authorize release of her treatment records for an in camera review. As a result, in November of 2011 the circuit court entered an order barring the woman from testifying at trial. Citing Shiffra, the circuit court said “that is the very long established remedy directed by the Wisconsin appellate courts under such circumstances.” The state appealed.

Before briefing was complete, the Court of Appeals granted the state’s unopposed motion to put the appeal on hold pending this court’s decision in Johnson. After the Johnson reconsideration motion had been disposed of, briefing in this case resumed and the Court of Appeals issued its decision in November of 2014.

The Court of Appeals agreed with the circuit court that the defendant made a sufficient showing under State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, for an in camera review. It also agreed with the circuit court that alleged victim’s testimony must be excluded from the trial if she continues to refuse to allow the circuit court to conduct an in camera review of her treatment records.

In appealing to the Supreme Court, the state says this case (Lynch) affords the Supreme Court an opportunity to clarify the issue and provide parties, prosecutors and defense attorneys with guidance.

The Court reviews several issues presented by the state:

• Do defendants have a constitutional right to disclosure of privately held privileged records?

• If they do, what is the basis for the constitutional right? After determining that Lynch had made the showing required by State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, could the circuit court have invoked Wis. Stat. § 146.82(2)(a)4. to obtain records without consent?

• Assuming a circuit court cannot obtain a witness’s privileged records without consent pursuant to § 146.82(2)(a)4., is witness preclusion always required when a defendant satisfies Shiffra/Green but the victim withholds consent to an in camera review of her privileged records?

From Dodge County.

2013AP857-CR State v. Dumstrey
This drunken driving case examines whether the parking garage of a motorist’s apartment building was “curtilage,” such that a police officer’s entry into the garage was a warrantless and unreasonable search and seizure prohibited by the Fourth Amendment. Curtilage is the area immediately adjacent to a home that harbors “the intimate activity associated with the sanctity of [one’s] home and the privacies of life.” See Oliver v. United States, 466 U.S. 170, 180 (1984).

Some background: Brett W. Dumstrey was arrested for Operating While Intoxicated (OWI) and ultimately pled guilty to OWI second offense after his motion to suppress evidence was denied.

Officer Paul DeJarlais of the city of Waukesha Police Department testified at the suppression hearing that he was off duty and driving his personal vehicle when he encountered Dumstrey driving in traffic around 11:30 p.m. one night.

The officer said he noticed in his rearview mirror that the defendant’s car was approaching at a very high rate of speed. The defendant passed the officer, then slowed down and tailgated another vehicle. The officer said that more than once he observed the defendant swerve into the adjacent lane, accelerate rapidly, and begin tailgating.

The officer called the police department and reported his observations. He then pulled up alongside the defendant at an intersection, made eye contact with the defendant and tried to identify himself as a police officer by displaying his badge and photo identification. The officer told the defendant he had called the police and that the defendant should “wait here.” The officer testified the defendant did not respond and stared back with a “blank look on his face.” The officer testified that from his training and experience the defendant appeared to be very intoxicated.

While still stopped at the intersection, the officer told Dumstrey to pull over. When the light turned green, the officer went through the intersection and pulled over. Dumstrey stayed in the intersection for almost the entire green light, then went through the intersection and pulled up alongside the officer in the middle of the traffic lane. The officer again instructed Dumstrey to wait. Dumstrey waited a couple of seconds then drove off and turned into a driveway at the Riverwalk Apartments.

The officer followed the vehicle to the apartments, where the defendant drove around the parking lot before entering the parking garage through a remote controlled door. The officer parked his car partway through the door opening so the door could not close and then entered the garage and made contact with the defendant. The officer again identified himself as a police officer and displayed his wallet with his badge.

At that point an on-duty police officer arrived. That officer testified Dumstrey’s eyes were glassy and bloodshot, his speech was slurred, and the officer smelled an odor of intoxicants. The defendant was also swaying back and forth. The defendant refused to perform field sobriety tests and refused to provide a preliminary breath test before being arrested.

The defendant moved to suppress evidence obtained subsequent to the off-duty officer’s entrance into the parking garage, arguing that the evidence was obtained in violation of the Fourth Amendment. The circuit court denied the motion. In its remarks from the bench, the circuit court said, “If nothing else we’ve reached an area of law that’s not clear and yet may certainly benefit from further clarity from the Court of Appeals.”

Dumstrey pled guilty to second offense OWI and later appealed. The Court of Appeals affirmed.

The Court of Appeals noted that the defendant did not contest the fact that the off-duty officer had reasonable suspicion to stop him. The state conceded that if the garage was curtilage, then the officer improperly entered it to seize the defendant. Thus, the appellate court said the narrow question presented was whether the parking garage was curtilage such that the officer’s entry into the garage was a warrantless and unreasonable search and seizure prohibited by the Fourth Amendment.

The appellate court noted that in United States v. Dunn, 480 U.S. 294, 301 (1987), the Supreme Court set forth the following factors that are to be considered when defining the extent of a home’s curtilage: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

The appellate court said for the warrant requirement of the Fourth Amendment to apply, a defendant must have a reasonable expectation of privacy in the location of the search. Whether a person has a reasonable expectation of privacy will depend on whether the person has an actual, subjective expectation of privacy in the area inspected and whether society is willing to recognize such an expectation of privacy as reasonable. See State v. Trecroci, 2001 WI App 126, ¶35, 246 Wis. 2d 261, 630 N.W.2d 555.

The Court of Appeals ultimately concluded that under the totality of the circumstances present in this case, the parking garage was not curtilage. It pointed out that unrefuted testimony showed there were 30 stalls in the parking garage. While the underground garage connected to the defendant’s apartment building, and the outside access was limited to tenants and shielded from the general public with entry by remote control, the defendant shared the garage with his landlord and the other tenants who parked there along with their invitees. The appellate court said given the defendant’s lack of complete dominion and control and his inability to exclude others, the parking garage was not curtilage of his home. The court also concluded the defendant did not have a reasonable expectation that the common, shared garage would be free from any intrusion.

Dumstrey contends that the state has conceded that if the garage is curtilage, then the off-duty officer improperly entered it to seize the defendant. Dumstrey says perhaps one of the other 29 tenants of the apartment building could have granted the officer permission to enter, but none did so and none was asked to do so. He says if the Court of Appeals’ decision is allowed to stand, no resident of an apartment building would have any basis to challenge the admissibility of evidence obtained by officers setting up a permanent camp inside a parking garage like the one here or placing hidden cameras in the hallways of a building that cannot otherwise be accessed by the public.

From Waukesha County.

Review denied: The Supreme Court denied review in the following cases. As the state’s law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

2014AP895 Larson v. Castle at the Bay, LLC

2014AP143 State v. Brooks
2014AP264 State v. Bradley

2014AP2446-W Baker v. Cir. Ct. Columbia Co.

2013AP2190-CR State v. Ehrett
2013AP2366-CR State v. Morton
2014AP1331-W al Ghashiyah v. Lanford - Justice N. Patrick Crooks did not participate.
2014AP1893-W al Ghashiyah v. Foust -Justice N. Patrick Crooks did not participate.
2014AP2056 Tatum v. Meisner
2014AP2087-CR State v. Flahavan

2012AP2114-CR State v. Reese

2014AP460-CR State v. Whitehead

Fond du Lac
2013AP2294-CR State v. Norfleet - Justice David T. Prosser, Jr. did not participate.
2014AP4-CR State v. Earls

2013AP686-CR State v. Turner

2013AP526-CR State v. Norquay

2013AP2524-CR State v. Goad
2014AP6 Kenosha County v. Frett - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.

La Crosse
2013AP1119-CR State v. Potvine

2014AP955 Marathon Co. v. Zachary W.
Chief Justice Shirley S. Abrahamson dissents.

2013AP1788-CRNM State v. Beaudo

2013AP362-CR State v. Rindfleisch - Justice David T. Prosser, Jr. did not participate.
2013AP1434 State v. Anderson
2013AP1442-NM Milwaukee Co. v. Anne M.
2013AP1626/28-CR State v. Johnson - Justice Patience Drake Roggensack did not participate.
2013AP1838-CR State v. Turman
2013AP2029 Lee v. Symdon
2013AP2337 Marina Cliffs Phase I v. Malecki
2013AP2467 State v. Macon
2013AP2635 Wauwatosa Savings Bank v. Scruggs
2013AP2739 Coppins v. Allstate Indemnity Co.
2014AP116-W Johnson v. Richardson
2014AP204-CR State v. Triggs
2014AP330-CR State v. Farrell
2014AP395 Haynes v. American Fam. Mut. Ins. Co.
2014AP554-CR State v. Abbott
2014AP853-W Washington-Lee v. Foster
2014AP1019-CR State v. Przytarski
2014AP293 Holy Redeemer Church v. DPI

2013AP2559-CR State v. Carlson
2014AP73-CR State v. Bahr

2013AP2096 H & C R.E. Investment v. Pember Exacavating

2013AP2545-CR State v. Overturf
2014AP384 McDonald v. Schwarz
2014AP501-CR State v. Cobbs

2014AP465 Larson v. Larson
2014AP623-CR State v. Hanson
2014AP1956-W Alexander v. Richardson

2014AP313-W Ross v. Pugh
2014AP344 State v. Ross

2013AP2173-CR State v. Moreno-Acosta - Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissent.
2014AP82-CR State v. DeMint

2014AP324 State v. Lalicata

2013AP1479 Trentadue v. Trentadue
2014AP1122-CR State v. Marker
2014AP1939-FT Waukesha Co. DH&HS v. Gary. W. B.

2013AP2178-CR State v. Ezell
2013AP2839 Townsend v. Neenah Joint School Dist.

Tom Sheehan
Court Information Officer
(608) 261-6640

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