Criminal Law

In prosecution on arson charges arising out of fire damages to building where defendant’s former girlfriend resided, Dist. Ct. did not commit plain error in failing to qualify forensic examiner and ATF agent before allowing them to testify as to process of extracting data from defendant’s cellphone. Defendant conceded that he could not show that forensic examiner and ATF agent were unqualified to give challenged testimony, and Ct. of Appeals noted that other circuits have held that testimony about extracting data from cellphone is not expert testimony. Dist. Ct. erred, though, in denying defendant opportunity to cross-examine ATF agent about location data obtained through defendant’s cellphone extraction, where: (1) Dist. Ct. failed to explain basis for its lack of foundation ruling when sustaining govt.’s objection to defendant’s cross-examination of ATF agent; and (2) Dist. Ct. made its ruling off record during sidebar without making contemporaneous record of sidebar discussion. However, any error was harmless, where other evidence, including defendant’s incriminating text messages to his girlfriend on evening of arson, and fact that police found defendant hiding under nearby car with gasoline on his shoes and socks and lighter in his pocket, overwhelmingly established defendant’s guilt.

Dist. Ct. did not err in denying defendant’s habeas petition that challenged his conviction on charges of aggravated battery, first-degree reckless endangerment and attempted burglary to which defendant had pleaded no contest and all of which arose out of domestic dispute with his wife. While defendant argued that his trial counsel was ineffective for essentially guaranteeing that defendant would receive term of not more than 10 years (although defendant actually received 27-year term of initial confinement), such that defendant should have been allowed to withdraw his no contest pleas, AEDPA deference applied to Wisconsin Ct. of Appeals finding that trial counsel’s misjudgment of defendant’s likely sentence was not ineffective, where defendant did not present any evidence, besides incorrect estimate of his sentence, to suggest that trial counsel performed deficiently. Moreover, Ct. of Appeals determined that defendant knew at sentencing that trial court could impose maximum sentences, and that there was no guarantee that trial counsel’s estimate of his sentence would apply. Also, record showed that there were prior cases, where defendants facing similar charges had received sentences within range of trial counsel’s prediction. Ct. also rejected defendant’s claim that his appellate counsel was ineffective for failing to raise claim on appeal that trial counsel was ineffective for failing to advise him that he could move to withdraw his no contest pleas prior to sentencing, where trial counsel acted reasonably in not advising defendant to make such motion, and where it was debatable whether instant unraised claim was clearly stronger than other claims raised on appeal.

Dist. Ct. did not err in denying defendants’ motions for reduction of their sentences under First Step Act. With respect to first defendant, Dist. Ct. reduced defendant’s 240-month sentence to 225-months, based on observation that defendant’s distribution of 50 kilograms of powder cocaine at issue in his conviction was outside scope of First Step Act. Moreover, Dist. Ct. could look to defendant’s prior felony in deciding not to reduce defendant’s sentence even further, even though instant prior conviction would not have counted under changes made under First Step Act if defendant had been sentenced at time First Step Act had been enacted, since said change was not retroactive. With respect to second defendant, record showed that: (1) defendant had received life sentence for conspiracy to distribute both crack and powder cocaine; and (2) President Obama commuted defendant’s sentence to 30 years. While defendant argued that he was entitled to further reduction, Dist. Ct. could properly find that under Fair Sentencing Act, statutory minimum sentence for defendant remained life in prison due to quantities at issue in defendant’s distribution of powder cocaine. As such, defendant’s statutory minimum penalty was and remained life in prison, and defendant’s only avenue for further relief was petition for clemency. Ct. also observed that defendants’ motions for reconsideration of Dist. Ct.’s initial denials of their motions seeking relief under First Step Act suspended finality of initial denial orders pending disposition of their motions to reconsider.