If the state shows that delay in charging an offense committed by an adult defendant while still a juvenile is not with a manipulative intent, due process does not require dismissal. State v. Montgomery, 148 Wis. 2d 593, 436 N.W.2d 303 (1989). Lineup and in-court identifications of a defendant may be suppressed as the fruit of an illegal arrest under appropriate circumstances. State v. Walker, 154 Wis. 2d 158, 453 N.W.2d 127 (1990). A comment during closing argument on the defendant’s courtroom demeanor when evidence of the demeanor was adduced during trial did not violate the 5th amendment. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991). Evidence favorable to the defendant must be disclosed if there is a “reasonable probability” that disclosure would result in a different trial outcome. State v. Garrity, 161 Wis. 2d 842, 469 N.W.2d 219 (Ct. App. 1991). When prior convictions are used to enhance a minimum penalty, collateral attack of the prior convictions must be allowed. State v. Baker, 165 Wis. 2d 42, 477 N.W.2d 292 (Ct. App. 1991). The defense of outrageous governmental conduct arises when the government violates a specific constitutional right and is itself so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the criminal justice system. State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992). When the argument of the defense invited and provoked an otherwise improper remark by the prosecutor, the question was whether, taken in context, the “invited remark” unfairly prejudiced the defendant. State v. Wolff, 171 Wis. 2d 161, 491 N.W.2d 498 (Ct. App. 1992). Due process is not violated when a burden of production is placed on a defendant to come forward with some evidence of a negative defense. State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992). Discussing the due process rights of a probationer at a hearing to modify probation. State v. Hays, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992). The interval between an arrest and an initial appearance is never unreasonable when the arrested suspect is already in the lawful physical custody of the state. State v. Harris, 174 Wis. 2d 367, 497 N.W.2d 742 (Ct. App. 1993). The admissibility of an out-of-court identification rests on whether the procedure was impermissibly suggestive and whether under all the circumstances the identification was reliable despite any suggestiveness. That another procedure might have been better does not render the identification inadmissible. State v. Ledger, 175 Wis. 2d 116, 499 N.W.2d 198 (Ct. App. 1993). A defendant has a fundamental right to testify in the defendant’s own behalf. Waiver of the right must be supported by a record of a knowing and voluntary waiver. State v. Wilson, 179 Wis. 2d 660, 508 N.W.2d 44 (Ct. App. 1993). The good or bad faith of police in destroying apparently exculpatory evidence is irrelevant, but, in the absence of bad faith, destruction of evidence that only provides an avenue of investigation does not violate due process protections. State v. Greenwold, 181 Wis. 2d 881, 512 N.W.2d 237 (Ct. App. 1994). An executory plea bargain is without constitutional significance and a defendant has no right to require the performance of an executory agreement, but upon entry of a plea due process requires the defendant’s expectations to be fulfilled. State v. Wills, 187 Wis. 2d 529, 523 N.W.2d 569 (Ct. App. 1994). Bad faith can only be shown if the officers are aware of the potentially exculpatory value of evidence they fail to preserve and the officers act with animus or make a conscious effort to suppress the evidence. State v. Greenwold, 189 Wis. 2d 59, 525 N.W.2d 294 (Ct. App. 1994). A prosecutor’s closing argument is impermissible when it goes beyond reasoning drawn from the evidence and suggests that the verdict should be arrived at by considering other factors. Substantially misstating the law and appearing to speak for the trial court was improper and required court intervention in the absence of an objection. State v. Neuser, 191 Wis. 2d 131, 528 N.W.2d 49 (Ct. App. 1995). Whether the interplay of legally correct instructions impermissibly misled a jury is to be determined based on whether there is a reasonable likelihood that a juror was misled. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187. Prosecutorial misconduct violates the due process right to a fair trial if it poisons the entire atmosphere of the trial. State v. Lettice, 205 Wis. 2d 347, 556 N.W.2d 376 (Ct. App. 1996), 96-0140. A defendant is denied due process when identification is derived from police procedures so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification. A suppression hearing is not always required when a defendant moves to suppress identification, but it must be considered on a case-by-case basis. State v. Garner, 207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996), 96-0168. A defendant has a due process right to have the full benefit of a relied upon plea bargain. The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny that right. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997), 97-0682. The state’s use, as a witness, of an informant who purchased and used illegal drugs while making controlled drug buys for the state, in violation of the informant’s agreement with the state, was not a violation of fundamental fairness that shocks the universal justice system and did not constitute outrageous governmental conduct. State v. Givens, 217 Wis. 2d 180, 580 N.W.2d 340 (Ct. App. 1998), 97-1248. Due process does not require that judges’ personal notes be made available to litigants. It is only the final reasoning process that judges are required to place on the record that is representative of the performance of judicial duties. State v. Panknin, 217 Wis. 2d 200, 579 N.W.2d 52 (Ct. App. 1998), 97-1498. The state’s failure to disclose that it took samples but failed to have them analyzed affected the defendant’s right to a fair trial because it prevented the defendant from raising the issue of the reliability of the investigation and from challenging the credibility of a witness who testified that the test had not been performed. State v. DelReal, 225 Wis. 2d 565, 593 N.W.2d 461 (Ct. App. 1999), 97-1480. When defense counsel has appeared for and represented the state in the same case in which counsel later represents the defendant, and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney’s former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant’s interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97-2336. See also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428, 99-1164. A new rule of criminal procedure applies to all cases pending on direct review or that are not yet final that raised the issue that was subject to the change. There is no retroactive application to cases in which the issue was not raised. State v. Zivcic, 229 Wis. 2d 119, 598 N.W.2d 565 (Ct. App. 1999), 98-0909. When an indigent defendant requests that the state furnish a free transcript of a separate trial of a codefendant, the defendant must show that the transcript will be valuable to the defendant. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d 238, 97-1219. Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, 97-1360. The entry of a plea from jail by closed-circuit television, while a violation of a statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154, 237 Wis. 2d 741, 615 N.W.2d 655, 99-1940. A pretrial detainee, including the subject of an arrest, is entitled to receive medical attention. The scope of this due process protection is not specifically defined but is at least as great as the 8th amendment protection available to convicted prisoners. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211. While the subtleties of police practice in some cases necessitate an expert witness, there is no per se requirement that there be expert testimony to prove an excessive use of force claim. Robinson v. City of West Allis, 2000 WI 126, 239 Wis. 2d 595, 619 N.W.2d 692, 98-1211. A defendant is denied due process when identification evidence stems from a pretrial procedure that is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Whether an identification is impermissible is decided on a case-by-case basis. State v. Benton, 2001 WI App 81, 243 Wis. 2d 54, 625 N.W.2d 923, 00-1096. The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard, and whether the state’s conduct was a substantial and material breach is a question of law. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535. A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams, 2002 WI 1, 249 Wis. 2d 492, 637 N.W.2d 733, 00-0535. Due process demands that a conviction not be based on unreliable evidence obtained through coerced witness statements resulting from egregious police practices. There are several factors to consider in determining whether police misconduct is so egregious that it produces statements that are unreliable as a matter of law and must be suppressed. State v. Samuel, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423, 99-2587. Although there is no place in a criminal prosecution for gratuitous references to race, the state may properly refer to race when it is relevant to a defendant’s motive. A racial remark is improper if it is intentionally injected into volatile proceedings when the prosecutor has targeted the defendant’s ethnic origin for emphasis in an attempt to appeal to the jury’s prejudices. State v. Chu, 2002 WI App 98, 253 Wis. 2d 666, 643 N.W.2d 878, 01-1934. Cases addressing the pretrial destruction of evidence and a defendant’s due process rights apply to posttrial destruction as well. A defendant’s due process rights are violated by the destruction of evidence: 1) if the evidence destroyed is apparently exculpatory and of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means; or 2) if the evidence is potentially exculpatory and is destroyed in bad faith. State v. Parker, 2002 WI App 159, 256 Wis. 2d 154, 647 N.W.2d 430, 01-2721. The trial court did not erroneously exercise its discretion in denying the defendant’s request that the defendant’s alibi witnesses be allowed to testify in street clothes rather than jail attire due to the difficulty associated with having the in-custody witnesses brought to the courtroom while keeping them separate, because allowing the clothing changes would create security risks, and because the witnesses had prior convictions that the jury would hear about anyway. State v. Reed, 2002 WI App 209, 256 Wis. 2d 1019, 650 N.W.2d 885, 01-2973. When an attorney represents a party in a matter in which the adverse party is that attorney’s former client, the attorney will be disqualified if the subject matter of the two representations are substantially related such that the lawyer could have obtained confidential information in the first representation that would have been relevant in the second. This test applies in a criminal serial representation case when the defendant raises the issue prior to trial. The actual prejudice standard in Love, 227 Wis. 2d 60 (1999), applies when a defendant raises a conflict of interest objection after trial. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192. Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following reversal of a conviction on appeal, the prosecutor offered a less favorable plea agreement than had been offered prior to the initial trial. A presumption of vindictiveness is limited to cases in which a realistic likelihood of vindictiveness exists; a mere opportunity for vindictiveness is insufficient. To establish actual vindictiveness, there must be objective evidence that a prosecutor acted in order to punish the defendant for standing on the defendant’s legal rights. State v. Tkacz, 2002 WI App 281, 258 Wis. 2d 611, 654 N.W.2d 37, 02-0192. Courts employ two tests to determine whether a defendant’s due process right to trial by an impartial judge is violated: 1) a subjective test based on the judge’s own determination of the judge’s impartiality; and 2) an objective test that asks whether objective facts show actual bias. In applying the objective test, there is a presumption that the judge is free of bias. To overcome that presumption, the defendant must show by a preponderance of the evidence that the judge is in fact biased and not that there is an appearance of bias or that the circumstance might lead one to speculate that the judge is biased. State v. O’Neill, 2003 WI App 73, 261 Wis. 2d 534, 663 N.W.2d 292, 02-0808. Following the reversal of one of multiple convictions on multiplicity grounds an increased sentence was presumptively vindictive, in violation of the right to due process. In order to assure the absence of a vindictive motive whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear and must be based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. State v. Church, 2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141, 01-3100. Coercive conduct by a private person, absent any claim of state involvement, is insufficient to render a confession inadmissible on due process grounds. Involuntary confession jurisprudence is entirely consistent with settled law requiring some state action to support a claim of violation of the due process clause. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the due process clause. State v. Moss, 2003 WI App 239, 267 Wis. 2d 772, 672 N.W.2d 125, 03-0436. The defendant’s due process rights were violated when the investigating detective gave a sentencing recommendation, written on police department letterhead and forwarded by the court to the presentence investigation writer to assess and evaluate, that undermined the state’s plea bargained recommendation, in effect breaching the plea agreement. State v. Matson, 2003 WI App 253, 268 Wis. 2d 725, 674 N.W.2d 51, 03-0251. The right to testify must be exercised at the evidence-taking stage of trial. Once the evidence has been closed, whether to reopen for submission of additional testimony is a matter left to the trial court’s discretion. A trial court must consider whether the likely value of the defendant’s testimony outweighs the potential for disruption or prejudice in the proceedings and if so whether the defendant has a reasonable excuse for failing to present the testimony during the defendant’s case-in-chief. State v. Arredondo, 2004 WI App 7, 269 Wis. 2d 369, 674 N.W.2d 647, 02-2361. Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases under s. 974.06. State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361, 03-0217. In considering prosecutorial vindictiveness when charges are increased following a successful appeal, whether a defendant is facing stiffer charges arising out of a single incident is important. The concern is that the defendant will be discouraged from exercising the defendant’s right to appeal because of fear the state will retaliate by substituting a more serious charge for the original one on retrial. That concern does not come into play when the new charges stem from a separate incident. State v. Williams, 2004 WI App 56, 270 Wis. 2d 761, 677 N.W.2d 691, 03-0603. A deaf defendant who was shackled during trial and sentencing had the burden to show that the defendant in fact was unable to communicate, not that the defendant theoretically might have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d 483, 04-2869. Dubose, 2005 WI 126, does not directly control cases involving identification evidence derived from accidental confrontations resulting in spontaneous identifications. However, in light of developments since its time, Marshall, 92 Wis. 2d 101 (1979), a case in which the court determined that identification evidence need not be scrutinized for a due process violation unless the identification occurs as part of a police procedure directed toward obtaining identification evidence, does not necessarily resolve all such cases. The circuit court still has a limited gate-keeping function to exclude such evidence under s. 904.03. State v. Hibl, 2006 WI 52, 290 Wis. 2d 595, 714 N.W.2d 194, 04-2936. But see State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894. When analyzing a judicial bias claim, there is a rebuttable presumption that the judge is fair, impartial, and capable of ignoring any biasing influences. The test for bias comprises two inquiries, one subjective and one objective, either of which can violate a defendant’s due process right to an impartial judge. Actual bias on the part of the decision maker meets the objective test. The appearance of partiality can also offend due process. Every procedure that would offer a possible temptation to the average person as a judge not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law. State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114, 05-1528. Absent a pervasive and perverse animus, a judge may assess a case and potential arguments based on what the judge knows from the case in the course of the judge’s judicial responsibilities. Opinions formed by the judge on the basis of facts introduced or events occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. State v. Rodriguez, 2006 WI App 163, 295 Wis. 2d 801, 722 N.W.2d 136, 05-1265. The admissibility of an in-court identification following an inadmissible out-of-court identification depends on whether the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. To be admissible, the in-court identification must rest on an independent recollection of the witness’s initial encounter with the suspect. State v. Nawrocki, 2008 WI App 23, 308 Wis. 2d 227, 746 N.W.2d 509, 06-2502. When the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence, the statements are impermissible. Improper comments do not necessarily give rise to a due process violation. For a due process violation, the court must ask whether the statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d 77, 06-1847. Due process requires that vindictiveness against a defendant for having successfully attacked the defendant’s first conviction must play no part in the sentence received after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive. That presumption also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence, when it implements the original dispositional scheme, is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508. There is not an exclusive possession requirement as an element of the due process test when apparently exculpatory evidence is not preserved by the state. In this case, while the physical evidence, cell phones, was solely within the state’s possession, the concomitant electronic voicemail evidence was stored elsewhere and could have been accessed by both the state and the defense until it was destroyed by the phone service provider in the normal course of business. Given the facts of this case, however, it was reasonable for the defendant to expect that the state would preserve the voicemail recordings. State v. Huggett, 2010 WI App 69, 324 Wis. 2d 786, 783 N.W.2d 675, 09-1684. A defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810. In order to establish that the state violated a defendant’s due process rights by destroying apparently exculpatory evidence, the defendant must demonstrate that: 1) the evidence destroyed possessed an exculpatory value that was apparent to those who had custody of the evidence before the evidence was destroyed; and 2) the evidence is of such a nature that the defendant is unable to obtain comparable evidence by other reasonably available means. The mere possibility that evidence of a bullet having been lodged in a destroyed van after a detective thoroughly examined the van and specifically looked for just such a bullet or bullet strike did not support the argument that the van’s purported exculpatory value was apparent. State v. Munford, 2010 WI App 168, 330 Wis. 2d 575, 794 N.W.2d 264, 09-2658. The public interest would be unduly harmed if the state were equitably estopped from prosecuting criminal charges. There is a compelling societal interest in convicting and punishing criminal offenders. On balance, the public interests at stake will always outweigh any potential injustice to a criminal defendant when the defendant seeks to evade prosecution via equitable estoppel. State v. Drown, 2011 WI App 53, 332 Wis. 2d 765, 797 N.W.2d 919, 10-1303. A prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. Courts review a prosecutor’s charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor’s decision to bring additional charges is rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368. The circuit court’s decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not deprive the defendant of a fair and just hearing. The factors a trial court should consider in determining whether a defendant’s presence is required to ensure a fair and just hearing include whether the defendant could meaningfully participate, whether the defendant would gain anything by attending, and whether the presence of the defendant would be counterproductive. State v. Alexander, 2013 WI 70, 349 Wis. 2d 327, 833 N.W.2d 126, 11-0394. The court’s invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word” will create reversible error. The transcript reflects that the court’s offhand religious references addressed proper secular sentencing factors. The judge’s comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85, 349 Wis. 2d 428, 835 N.W.2d 249, 12-1339. There are two approaches that courts use to see if an alleged enhancing conviction carries its burden of qualifying as an enhancing offense. Under the categorical approach, courts ordinarily look only to the fact of conviction and the statutory definition of the prior offense. When a statute defines an element in the alternative, however, the categorical approach is modified to determine which alternative formed the basis of conviction. Under the modified categorical approach, courts consult a limited class of documents, including charging documents, transcripts of plea colloquies, and jury instructions. The purpose of consulting such documents is to identify, from among several alternatives, the crime of conviction. State v. Guarnero, 2014 WI App 56, 354 Wis. 2d 307, 848 N.W.2d 329, 13-1753. In order to satisfy the requirements of the U.S. and Wisconsin Constitutions, the charges in a complaint and information must be sufficiently stated to allow the defendant to plead and prepare a defense. In child sexual assault cases, courts may apply the seven factors outlined in Fawcett, 145 Wis. 2d 244 (1988), and may consider any other relevant factors necessary to determine whether the complaint and information states an offense to which the defendant can plead and prepare a defense. No single factor is dispositive, and not every Fawcett factor will necessarily be present in all cases. State v. Kempainen, 2015 WI 32, 361 Wis. 2d 450, 862 N.W.2d 587, 13-1531. In the context of evidence preservation and destruction, the Wisconsin Constitution does not provide greater due process protections under Clause 1 of this section than the U.S. Constitution does under either the 5th or 14th amendments. Defendants must show that the state failed to preserve evidence that was apparently exculpatory or acted in bad faith by failing to preserve evidence that was potentially exculpatory. Bad faith can be shown only if: 1) the officers were aware of the potentially exculpatory value or usefulness of the evidence they failed to preserve; and 2) the officers acted with official animus or made a conscious effort to suppress exculpatory evidence. The routine destruction of a driver’s blood or breath sample, without more, does not deprive a defendant of due process. State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, 13-0218. When a defendant seeks to present evidence that a third party committed the crime for which the defendant is being tried, the defendant must show a legitimate tendency that the third party committed the crime, in other words, that the third party had motive, opportunity, and a direct connection to the crime. State v. Wilson, 2015 WI 48, 362 Wis. 2d 193, 864 N.W.2d 52, 11-1803. A court of appeals’ decision remanding the case to the circuit court with instructions to enter an amended judgment of conviction for operating with a prohibited alcohol content (PAC) as a seventh offense and impose sentence for a seventh offense violated the defendant’s right to due process after the defendant entered a knowing, intelligent, and voluntary guilty plea to operating with a PAC as a sixth offense. Because a seventh offense carries a greater range of punishment than does a sixth offense, the court of appeals’ remedy rendered the plea unknowing, unintelligent, and involuntary. State v. Chamblis, 2015 WI 53, 362 Wis. 2d 370, 864 N.W.2d 806, 12-2782. When determining whether a defendant’s right to an objectively impartial decisionmaker has been violated, the court considers the appearance of bias in addition to actual bias. When the appearance of bias reveals a great risk of actual bias, the presumption of impartiality is rebutted and a due process violation occurs. In this case, although the judge’s statements about the judge’s sister were personal, they were used in an attempt to illustrate the seriousness of the crime and the need to deter drunk driving in our society and not as as an expression of bias against the defendant. State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772, 13-0197. A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant’s right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157. When the state alleged that the defendant engaged in repeated sexual assaults of the same child during 2007 and 2008, and during that time period s. 948.025 (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred. Although the defendant should have been charged under the 2007-08 law, the defendant was mistakenly charged under the 2005-06 law. Nevertheless, the defendant was charged with a crime that existed at law. Class C criminal liability attached under the 2005-06 and 2007-08 laws to the same conduct as it pertained to the defendant. The wording difference was immaterial as the elements, as applied to the defendant, were the same. The technical charging error did not prejudice the defendant, nor did it affect the circuit court’s subject matter jurisdiction. State v. Scott, 2017 WI App 40, 376 Wis. 2d 430, 899 N.W.2d 728, 16-1411. If a prosecutor’s statements are fairly characterized as impressing on the jury the importance of assessing a witness’s credibility, there is no error. In this case, a verdict would necessarily follow the jury’s determination of the victims’ credibility; therefore, the state’s argument that the jurors should not find the defendant not guilty unless they concluded the victims lied was equivalent to asking the jurors to carefully weigh the victims’ credibility. There was no error and no denial of due process. State v. Bell, 2018 WI 28, 380 Wis. 2d 616, 909 N.W.2d 750, 15-2667. The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute’s primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144 (1963): 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction’s operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740. In order to establish that the state suppressed exculpatory or impeaching evidence in violation of Brady, 373 U.S. 83 (1963), there is no requirement to show that the evidence was in the state’s exclusive possession and control, and it is not necessary to establish that the suppression of evidence imposes an intolerable burden on the defense. State v. Wayerski, 2019 WI 11, 385 Wis. 2d 344, 922 N.W.2d 468, 15-1083. A funding statute for drug court programs did not create a fundamental liberty interest and did not need to provide expulsion procedures to survive a procedural due process challenge. State v. Keister, 2019 WI 26, 385 Wis. 2d 739, 924 N.W.2d 203, 17-1618. A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possible term of civil commitment because: 1) a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, 16-2258. A circuit court may utilize a waiver of rights form for a defendant who is pleading guilty, but the use of that form does not otherwise eliminate the circuit court’s plea colloquy duties. While a circuit court must exercise great care when conducting a plea colloquy so as to best ensure that a defendant is knowingly, intelligently, and voluntarily entering a plea, a formalistic recitation of the constitutional rights being waived is not required. State v. Pegeese, 2019 WI 60, 387 Wis. 2d 119, 928 N.W.2d 590, 17-0741. Under Sell, 539 U.S. 166 (2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government’s interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Section 971.14 (4) (b) does not require the circuit court to determine whether the Sell factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is incapable of expressing an understanding of the proposed medication or treatment or who is substantially incapable of applying an understanding of the defendant’s mental illness in order to make an informed choice regarding medication or treatment. The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant’s significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that s. 971.14 (3) (dm) and (4) (b) requires circuit courts to order involuntary medication when the Sell standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, 18-1214. General allegations of physical abuse by a third party against the victim do not provide a sufficient direct connection between the third party and the perpetration of the crime charged to satisfy the legitimate tendency test established under Wilson, 2015 WI 48. State v. Griffin, 2019 WI App 49, 388 Wis. 2d 581, 933 N.W.2d 681, 18-0649. Dubose, 2005 WI 126, is overturned. Reliability is the linchpin in determining the admissibility of identification testimony. A criminal defendant bears the initial burden of demonstrating that a showup is impermissibly suggestive. If the defendant meets that burden, the state must prove that under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive. State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813, 17-1894. Defendants have a due process right to be sentenced based upon accurate information. A defendant who was sentenced based on inaccurate information may request resentencing. The defendant must show by clear and convincing evidence that: 1) some information at the original sentencing was inaccurate; and 2) the circuit court actually relied on the inaccurate information at sentencing. A circuit court actually relies on incorrect information when it gives explicit attention or specific consideration to it, so that the misinformation formed part of the basis for the sentence. If the defendant meets that burden, then the burden shifts to the state to prove beyond a reasonable doubt that the error was harmless. State v. Coffee, 2020 WI 1, 389 Wis. 2d 627, 937 N.W.2d 579, 17-2292. The defendant’s due process rights were not violated by the circuit court’s use of the previously unknown information regarding sentences imposed by the court upon similarly situated defendants. State v. Counihan, 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530, 17-2265. In Wisconsin, courts employ the guilty plea waiver rule, which states that a guilty, no contest, or Alford plea waives all nonjurisdictional defects, including constitutional claims. An exception to the rule states that a facial constitutional challenge is a matter of subject matter jurisdiction, which cannot be waived, whereas an as-applied challenge is a nonjurisdictional defect that can be waived. State v. Jackson, 2020 WI App 4, 390 Wis. 2d 402, 938 N.W.2d 639, 18-2074. In this case, when the judge served as both the presiding judge in the drug court program in which the defendant participated and as the sentencing judge in the defendant’s criminal case, the defendant met the defendant’s burden to demonstrate objective judicial bias based on the combined effect of 1) the judge’s comments indicating the judge had determined before the sentencing-after-revocation hearing that the defendant would be sentenced to prison if the defendant did not succeed in drug court; and 2) the judge’s dual role as the presiding judge in the drug court proceedings and as the judge who sentenced the defendant after the revocation of the defendant’s probation. State v. Marcotte, 2020 WI App 28, 392 Wis. 2d 183, 943 N.W.2d 911, 19-0695. The court will not exercise its superintending power to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford, 400 U.S. 25 (1970), plea when there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court. State v. Nash, 2020 WI 85, 394 Wis. 2d 238, 951 N.W.2d 404, 18-0731. In this case, the state agreed as part of a plea deal to cap its recommendation at a 20-year sentence, including initial incarceration and extended supervision. The state’s remarks at sentencing that both parties agreed that 25 years in total was appropriate—whether indicating its agreement with either a 25-year total sentence or a 20-year bifurcated sentence followed by a five-year term of probation—constituted a breach of the plea agreement because, under principles of contract law, the parties construed the term “sentence” broadly to include any term of probation. State v. Weigel, 2022 WI App 48, 404 Wis. 2d 488, 979 N.W.2d 646, 21-1792. The U.S. Supreme Court in Griffin, 502 U.S. 46 (1991), drew a distinction between jury instructions that instruct a jury on a legally, as opposed to a factually, inadequate theory. The Griffin court held that, while a jury instruction is erroneous if it includes methods of proof that are not supported by sufficient evidence, such an error does not violate due process when the jury is also instructed on a theory that is supported by sufficient evidence. In this case, although the circuit court erroneously instructed the jury on two methods of proof that were not supported by sufficient evidence, that error did not violate the defendant’s right to due process because the jury was also instructed on a method of proof that was supported by sufficient evidence. State v. Harvey, 2022 WI App 60, 405 Wis. 2d 332, 983 N.W.2d 700, 21-1689.
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wisconsinconstitution
/constitution/wi/000229/000019/000006/000076
section
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