Criminal Law

Defendant was entitled to new trial on murder charges, where Wisconsin state trial court had violated defendant’s right to counsel by denying defendant’s request to represent himself and directing his legal counsel to continue her representation of defendant. Under Faretta, trial court was required to honor defendant’s request assuming that defendant was generally competent, and record showed that instead of trial court warning defendant of risks that attend self-representation and allowing defendant to make decision on whether to represent himself, trial court required defendant to convince it through demonstration of his technical legal knowledge that he understood and accepted challenges of self-representation in light of his limited 10^th grade education. Moreover, Ct. noted that there was nothing with respect to defendant’s limited education that would have prevented defendant from determining whether he would have been able to defend himself. Also, Ct. observed that defendant had been able to study court procedures and Wisconsin statutes. As such, Dist. Ct. erred in denying defendant’s habeas petition.

Dist. Ct. did not err in denying defendant’s Rule 35(a) motion to reconsider his 144-month term of incarceration on drug and firearm charges, even though prosecutor erroneously told Dist. Ct., in response to defendant’s argument that he had turned his life around, that defendant had tested positively for presence of one unauthorized drug on evening before sentencing hearing. Instant sentence was within applicable guideline range, and Dist. Ct. noted that it would have sentenced defendant to longer sentence had it not been for govt.’s recommendation of 144-month sentence that was made prior to asserting instant erroneous information about defendant’s drug use. Moreover, defendant could not use Rule 35(a) to seek instant relief, where defendant was only seeking to address factual mistake made by litigant. Ct. further noted that Dist. Ct. did not rely on false information provided by prosecutor when imposing instant sentence.

Dist. Ct. did not err in sentencing defendant to 188-month term of incarceration on drug distribution charge, even though defendant argued that Dist. Ct. erred in imposing two-level enhancement for obstruction of justice arising out of incident in which, after defendant had been arrested and released, police subsequently apprehended defendant at airport attempting to flee to Mexico with one-way ticket. Although flight from officers at time of arrest may not constitute obstruction, instant enhancement was proper, where defendant’s attempted flight to Mexico posed likelihood that his actions would significantly burden govt.’s investigation or prosecution. Defendant also waived any argument that Dist. Ct. improperly calculated amount of cocaine involved in instant offense by making only perfunctory argument in his brief that failed to develop either factual or legal basis for such claim.

In prosecution on Hobbs Act robbery and firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress his arrest on ground that police lacked probable cause, where instant arrest was based on tip police received from informant about planned robbery under circumstances where tipster’s credibility had been untested at time of defendant’s arrest, and where police had been unable to corroborate allegations of criminal conduct until after defendant had been arrested on traffic stop. Police had probable cause to arrest defendant, where police had corroborated numerous details of planned robbery that had been supplied by tipster, which included facts that only someone close to defendant would have known. Moreover, tipster’s status as individual under federal sentence only enhanced his credibility, where tipster faced serious consequences if he had lied to officers, and defendant’s attempted flight during police attempt to make traffic stop was additional factor supporting finding of probable cause. Ct. further found that Hobbs Act robbery was “crime of violence” that would support defendant’s firearm conviction under section 924(c)(1)(A)(iii). Ct., though, ordered limited remand for reconsideration of terms of supervised release, where Dist. Ct. had improperly failed to orally pronounce each term of supervised release and had failed to give defendant meaningful opportunity to object to said conditions that had been included in pre-sentence report.

Dist. Ct. did not err in denying defendant’s motion for post-conviction relief, alleging that his trial counsel was ineffective for failing to adequately inform him of govt.’s plea offer and for failing to advise him of potential ramifications of rejecting 20-year sentence offer, under circumstances where defendant took case to trial and ultimately received life sentence on cocaine distribution charge. Record showed that defendant met with defense counsel three times prior to trial to discuss plea proposal, and defendant repeatedly rejected potential agreement. Moreover, counsel wrote defendant letter that outlined principal terms of plea proposal and advised him that he would likely face life sentence based upon potential testimony that defendant was involved in murder of witness in his instant drug case. Ct. found that counsel adequately conveyed all known terms of plea proposal, and counsel’s letter defeated any claim that defendant was unaware of potential outcome if he took case to trial. Also, defendant failed to show that there was reasonable probability that he would have accepted any plea offer.