Sitting in Waukesha County for the first time ever, the Wisconsin Supreme Court will hear oral argument in three cases (below) on October 7, 2014 as part of its Justice on Wheels outreach program.
Waukesha is the 25th Wisconsin county where the Court has sat for oral argument since the Justice on Wheels program was started in 1993. Justice on Wheels gives people in other parts of the state an opportunity to see the Supreme Court at work outside the state Capitol in Madison, where oral arguments are usually heard each year from September through May.
Chief Justice Shirley Abrahamson floated the idea of a road trip a few times over the years without success. It wasn’t until 1993 that the idea was finally put to a vote. With three of the seven justices dissenting, the Court determined that it would hear arguments outside of Madison for the first time in its history.
An ideal of Reaching out to the Public
Since 1993, the justices have conducted proceedings in the following counties: Brown, Eau Claire, Marathon, Milwaukee, La Crosse, Douglas, Rock, Kenosha, Sauk, Dodge, Oneida, Outagamie, Portage, Racine, Fond du Lac, Walworth, Waushara, St. Croix, Winnebago, Iowa, Washington, Columbia, Green and Sheboygan.
“Public outreach is very important to me,” says Chief Justice Shirley S. Abrahamson. “I’ve always advocated for judges doing things outside the courtroom.” Indeed, when she was appointed to the Court in 1976, her investiture ceremony was held not in the Supreme Court Hearing Room, as was then customary, but in the Wisconsin Assembly chambers, which can hold a larger audience. Since then, other justices have followed suit, and Chief Justice Abrahamson was sworn in as chief in the state capitol rotunda, which can accommodate a much larger crowd than either the hearing room or the Assembly chambers.
Seats to watch the Court’s hearings are free and open to the public, but space is limited. Reservations are recommended and may be made by calling the Court at (608) 266-1298 or e-mailing program assistant Sara Foster, firstname.lastname@example.org. Teachers interested in attending with students are encouraged to do so and should also contact Ms. Foster. Materials will be provided to attendees to help them understand the case being argued and the Court’s role.
The three cases:
Argument in each case is expected to last about an hour, starting at approximately 9:20 a.m., 10:50 a.m. and 1:50 p.m. Brief descriptions of the three cases are as follows:
2013AP1163 State v. Hemp
This case examines the manner in which expunction of a court record of a conviction is accomplished. The underlying Milwaukee County Circuit Court conviction for possession of marijuana with intent to deliver is not at issue. It is uncontested that Kearny W. Hemp successfully completed his probation on that conviction. The trial court record shows that at Hemp’s sentencing hearing, the judge indicated she would grant expunction of the conviction upon Hemp’s successful completion of probation.
About 8 months after he completed probation, Hemp was charged in Walworth County Circuit Court on one count each of possessing THC, possessing drug paraphernalia and operating while intoxicated. When Hemp sought to verify his Milwaukee conviction had been expunged, questions arose about expunction requirements, and those issues are now before the Supreme Court.
The circuit court ultimately denied expunction of Hemp’s conviction, and the Court of Appeals affirmed. The Court of Appeals ruled that a defendant does not receive court-ordered expunction automatically. The Court of Appeals ruled a defendant must affirmatively petition the circuit court by signing and filing “Form CR-266,” and fulfilling other filing requirements.
Hemp says the Court of Appeals’ interpretation reads significant obligations into § 973.015 not found there, such as the requirement to file the form, obtain various documents, sign the form in front of a notary, and to submit the materials to the circuit court.
In making his case, Hemp cites Stuart v. Weisflog’s Showroom Gallery, Inc., 2006 WI App 109, ¶49, 293 Wis. 2d 668, 721 N.W.2d 127 (courts will not superimpose requirements not expressed by the legislature onto a statute).
Hemp raises the following issues for Supreme Court consideration:
- Was Hemp’s conviction expunged upon successful completion of his sentence?
- Was Hemp required to petition the circuit court for expungement upon successful completion of his probation?
- May the circuit court unilaterally modify a sentence, sua sponte, to revoke probation that was duly granted?
A decision by the Supreme Court is expected to clarify the requirements for expunction.
2013AP1638-FT Outagamie County v. Michael H.
This case examines two issues arising from the court-ordered mental health commitment of Michael H. after a jury trial:
- Do thoughts of suicide or self-harm, without an articulated plan for acting on those thoughts, constitute “threats” of suicide or seriousbodily harm necessary to establish dangerousness under Wis. Stat. § 51.20(1)(a)2.a.?
- Was the evidence sufficient under a second standard specified in Wis. Stat. § 51.20(1)(a)2.c., which requires evidence of such impaired judgment, manifested by a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury?
2013AP843-CR State v. Alexander
This criminal case examines whether the Court of Appeals may choose to review a case under an ineffective assistance of counsel analysis, even though that claim was not raised the lower court or in the parties’ appellate briefs.
In January of 2012, Danny Robert Alexander was charged with and pled guilty to one count of felony forgery. He was convicted for cashing two checks worth a total of $3,203.36 on someone else’s account while he was on extended supervision for another offense.
The court ordered a presentence investigation (PSI) report. The report was prepared by a probation agent, but not the agent who had been supervising the defendant’s most recent period of supervision. The PSI was compiled from Department of Correction (DOC) supervision file materials and interviews of collateral witnesses.
The agent attached a copy of two statements Alexander had made to his probation agent as part of a revocation in a different case. In the statements, Alexander admitted cashing two other checks on another account that did not belong to him. The DOC forms on which the statements appeared indicated that the defendant was to “account in a truthful and accurate manner” for his activities and that failure to do so would be a violation for which he could be revoked. The form stated that “none of [the] information [in the DOC forms] can be used against me in criminal proceedings.” Defense counsel told the court that the PSI author had never actually interviewed Alexander.
The court said, in reliance on the PSI, that the defendant engaged in continued criminal activity, and that he had been revoked multiple times. Alexander was sentenced to three years of initial confinement and four years of extended supervision.
Alexander filed a post-conviction motion asking for a new sentence. He argued that the PSI author had wrongfully included the DOC forms containing incriminating statements made to the probation agent. He also alleged that his attorney never reviewed the PSI report with him. The sentencing court denied the motion. Alexander appealed, and the Court of Appeals reversed. The Court of Appeals noted that a person may not be compelled in any criminal case to be a witness against himself, and the privilege against self-incrimination extends to persons on probation.
The state argued that because defense counsel failed to object to the inclusion of the statements at the sentencing hearing, the defendant forfeited his right to pursue the issue on appeal. In the alternative, the state argued that the statements were not actually incriminating and that the erroneous inclusion of the statements in the PSI was harmless.
Prior to hearing the cases, the Court will open its visit with a welcome ceremony attended by local judges and other elected officials and community leaders. The Court also will hold an awards presentation to honor local fifth graders participating in the Supreme Court Essay Contest. In the afternoon, the justices will attend a luncheon hosted by the Waukesha County Bar Association.
** If your news organization is interested in any camera coverage of Justice on Wheels events, contact media coordinator Marke Krueger, Fox 6, Milwaukee (414) 588-2166.
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