Author: Michael Tobin

Michael Tobin is Deputy Public Defender for the State of Wisconsin, where he has been engaged in law reform activities for more than 30 years. He understands how important collateral consequences are to a defense lawyer’s practice, and he has compiled comprehensive on-line practice materials linking consequences to triggering criminal offenses under state law.

Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences

Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. 1  Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter. ↩

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Wisconsin court rules for non-citizen years after her plea

In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016).  The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea.

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Wisconsin considering redacting youthful dismissed charges

As part of budget deliberations, the Wisconsin Legislature’s Joint Finance Commitment approved a provision that would allow courts to remove records of certain dismissed charges from the computerized statewide records system. Under current law, although certain conviction records of youthful defendants may be expunged, anomalously dismissed charges remain accessible.  The new provision would allow a judge to order removal of a record from the internet site if all charges have been dismissed; all charges carried a maximum penalty not exceeding six years of imprisonment; none of the charges were classified as violent crimes; and the charges were filed before the defendant attained age 25.  These are the same criteria that apply to expungement of youthful convictions.  People who would benefit from the change include people whose only contact with the criminal justice system was a case that was ultimately dismissed after they went through deferred prosecution or a first offenders program. The new law would apply retroactively, thus allowing individuals to apply for removal from the website of charges dismissed before the effective date of the provision.  The redaction of records would apparently apply only to records accessible on the website, not to court records accessible through the local clerk of […]

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Professional careers jeopardized by old charges

A local office of the Wisconsin State Public Defender recently assisted two former clients who encountered obstacles with their respective legal and medical careers (minor details have been changed to ensure client confidentiality).  These examples show that old criminal cases, even for relatively minor charges, can cause employment difficulties and frustrate professional advancement many years later. The first former client recently passed an out-of-state bar examination, and he disclosed on his license application a 20-year-old Wisconsin misdemeanor charge.  When he called for assistance in interpreting the online court records, he learned (to his relief) that what he had always thought was a criminal conviction had actually been reduced to a non-criminal ordinance violation.  Although the original criminal charge remains accessible in Wisconsin’s court records, he was able to amend his license application to report that he does not have any criminal conviction record.  (It is not clear what effect a misdemeanor conviction would have had on his licensure, but now he won’t have to find out.)

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Is suspension of driving privileges an effective way to collect unpaid fines?

No, according to a recent study of efforts to enforce monetary judgments in a Milwaukee municipal court and to a national organization with expertise in traffic safety. The Justice Initiative Institute reviewed non-criminal, municipal cases from 2008-2013 in which the Milwaukee court had ordered the detention of defendants for not having paid fines. Not surprisingly, the report shows that most people who fail to pay fines have little if any income (a majority of those detained were unemployed). Therefore, although the prospect of sanctions might encourage payment by a population with greater financial resources, the use of incarceration for non-payment ends up costing the City of Milwaukee more than any additional amount of fines collected.

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