second part test in Wisconsin

2020Alexander further recognized precedent holding that “[w]hen the question relates to other improper factors like race and gender, only the second part of the test, actual reliance, is relevant.” Id., ¶21 (quoting State v. Harris, 2010 WI 79 , ¶33 n.10, 326 Wis. 2d 685 , 786 N.W.2d 409 ).

2020Alexander further recognized precedent holding that “[w]hen the question relates to other improper factors like race and gender, only the second part of the test, actual reliance, is relevant.” Id., ¶21 (quoting State v. Harris, 2010 WI 79 , ¶33 n.10, 326 Wis. 2d 685 , 786 N.W.2d 409 ).

1995Sauceda, 168 Wis. 2d at 495 , 485 N.W.2d at 5 .

1995Sauceda, 168 Wis. 2d at 495 , 485 N.W.2d at 5 .

1991Tappa, 127 Wis. 2d at 164 , 378 N.W.2d at 887 . 3 Thus, the second part of the test examines the legislative intent as to the allowable unit of prosecution.

1991Tappa, 127 Wis. 2d at 164 , 378 N.W.2d at 887 . 3 Thus, the second part of the test examines the legislative intent as to the allowable unit of prosecution.

2026On appeal, 6 No. 2024AP2074-CR Johnson solely challenges the second part of the inquiry: whether he was competent to represent himself.2 ¶15 When considering a defendant’s competency to proceed pro se, the circuit court must determine whether the defendant “possesses the minimal competence necessary to conduct his own defense.” See State v. Pickens, 96 Wis. 2d 549, 568-69 , 292 N.W.2d 601 (1980), overruled, in part, on other grounds by Klessig, 211 Wis. 2d 194, ¶13 .

2026On appeal, 6 No. 2024AP2074-CR Johnson solely challenges the second part of the inquiry: whether he was competent to represent himself.2 ¶15 When considering a defendant’s competency to proceed pro se, the circuit court must determine whether the defendant “possesses the minimal competence necessary to conduct his own defense.” See State v. Pickens, 96 Wis. 2d 549, 568-69 , 292 N.W.2d 601 (1980), overruled, in part, on other grounds by Klessig, 211 Wis. 2d 194, ¶13 .

2026If it does not, “we proceed to the second part of the test, which requires that we examine any ‘other applicable law’ that may prohibit the exclusion.” Id.

2026“Absent any other applicable law prohibiting the exclusion, it remains valid.” Id. ¶21 Both parties agree, as do we, that our supreme court’s decision in Vieau controls the first part of the test (i.e., whether WIS.

2026Vieau, 289 Wis. 2d 552 , ¶23 n.6. 10 No. 2024AP992 3.

2025Here, we begin with the tests articulated by the Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039 (1983), to determine “whether a suspect has initiated a discussion or conversation with police officers.” Conner, 344 Wis. 2d 233, ¶26 .

2025“Second, if the accused did indicate he [or she] wanted an attorney, we must determine whether he [or she] (a) initiated further 8 No. 2023AP1271-CR discussions with the police, and (b) knowingly and intelligently waived the right he [or she] had invoked.” Id. ¶17 There is no dispute in this case that Doss invoked his right to counsel, and our analysis focuses on the second part of the inquiry.

2025Here, we begin with the tests articulated by the Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039 (1983), to determine “whether a suspect has initiated a discussion or conversation with police officers.” Conner, 344 Wis. 2d 233, ¶26 .

2024These factors include: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances

2024These factors include: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances

2024Under the second part of the test, we assume that Julien put Johnson’s driveway to some private use by parking her vehicle there.6 See Dumstrey, 366 Wis. 2d 64, ¶47 .

2023As noted above, the sentencing court stated that it possessed “a factual studies file in [its] office” that stated females “younger than 15 that engage in sex:” (1) “have about triple the suicide and depression rates”; (2) “aren’t well 6 Because we affirm the circuit court’s ruling on the first part of the new factor analysis (i.e., that there was not a new factor) for the mandatory minimum and sex offender registration issues, we need not consider the second part of the analysis regarding the court’s discretionary decision as to whether those factors warranted sentence modification. 10 No. 20

2023As noted above, the sentencing court stated that it possessed “a factual studies file in [its] office” that stated females “younger than 15 that engage in sex:” (1) “have about triple the suicide and depression rates”; (2) “aren’t well 6 Because we affirm the circuit court’s ruling on the first part of the new factor analysis (i.e., that there was not a new factor) for the mandatory minimum and sex offender registration issues, we need not consider the second part of the analysis regarding the court’s discretionary decision as to whether those factors warranted sentence modification. 10 No. 20

2023However, once we determine that discretion was indeed exercised, we will reverse that decision only if the circuit court “applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts,” and “[w]e look for reasons to sustain a [circuit] court’s discretionary decision.” See State v. Wiskerchen, 2019 WI 1, ¶18 , 385 Wis. 2d 120 , 921 N.W.2d 730 (citations omitted). ¶24 Contrary to Bear’s assertions, the circuit court “made no error of law, and it explained its reason for concluding that the facts [Bear] presented did not justify modification of [his] sen

2023Id.

2023However, once we determine that discretion was indeed exercised, we will reverse that decision only if the circuit court “applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts,” and “[w]e look for reasons to sustain a [circuit] court’s discretionary decision.” See State v. Wiskerchen, 2019 WI 1, ¶18 , 385 Wis. 2d 120 , 921 N.W.2d 730 (citations omitted). ¶24 Contrary to Bear’s assertions, the circuit court “made no error of law, and it explained its reason for concluding that the facts [Bear] presented did not justify modification of [his] sen

2023However, once we determine that discretion was indeed exercised, we will reverse that decision only if the circuit court “applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts,” and “[w]e look for reasons to sustain a [circuit] court’s discretionary decision.” See State v. Wiskerchen, 2019 WI 1, ¶18 , 385 Wis. 2d 120 , 921 N.W.2d 730 (citations omitted). ¶24 Contrary to Bear’s assertions, the circuit court “made no error of law, and it explained its reason for concluding that the facts [Bear] presented did not justify modification of [his] sen

2022If the four factors of the first part are satisfied, then the court moves on to the second part of the inquiry, namely “whether the defendant’s right to present the proffered evidence is nonetheless outweighed by the State’s compelling interest to exclude the evidence.” Id., ¶55. “[W]hether to admit proffered expert testimony” “is within the [trial] court’s discretion[.]” State v. Dobbs, 2020 WI 64, ¶27 , 392 Wis. 2d 505 , 945 N.W.2d 609 .

2022If the four factors of the first part are satisfied, then the court moves on to the second part of the inquiry, namely “whether the defendant’s right to present the proffered evidence is nonetheless outweighed by the State’s compelling interest to exclude the evidence.” Id., ¶55. “[W]hether to admit proffered expert testimony” “is within the [trial] court’s discretion[.]” State v. Dobbs, 2020 WI 64, ¶27 , 392 Wis. 2d 505 , 945 N.W.2d 609 .

2022We explained that the use of the conjunctive phrasing 3 The conviction in this case clearly meets the second part of the test because the victims were his wife and adult children. 8 No. 2021AP1133-CR was “significant” and suggested that the case may have been decided differently “if the record showed that he entered a plea based on an element of violent, abusive, or otherwise disorderly conduct.” Id., ¶¶12 n.3, 20.

2017A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id., ¶20 (quoting Strickland, 466 U.S. at 694 ).

2017A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id., ¶20 (quoting Strickland, 466 U.S. at 694 ).

2015Tiepelman, 291 Wis. 2d 179, ¶14 ; Travis, 347 Wis. 2d 142, ¶¶28, 31 .

2015A circuit court "must articulate the basis for the sentence imposed." Harris (Denia), 119 Wis. 2d at 623 .

2015A circuit court "must articulate the basis for the sentence imposed." Harris (Denia), 119 Wis. 2d at 623 .

2013Plainly, however, "mere silence" is not sufficient to meet the second part of the test as formulated under State v. Ryan, 2012 WI 16 , 338 Wis. 2d 695 , 809 N.W.2d 37 .

2013Plainly, however, "mere silence" is not sufficient to meet the second part of the test as formulated under State v. Ryan, 2012 WI 16 , 338 Wis. 2d 695 , 809 N.W.2d 37 .

2013Because Lock has made no attempt in his appellate submissions to rebut that presumption, we conclude that under the second part of the test, there is no evidence that the legislature intended to prohibit Lock's convictions here and thus the counts are not multiplicitous. 7 See id.; State v. Gulrud, 140 Wis. 2d 721, 730 , 412 N.W.2d 139 (Ct. App. 1987) (We need not develop a defendant's arguments for him.). ¶ 39.

2013Because Lock has made no attempt in his appellate submissions to rebut that presumption, we conclude that under the second part of the test, there is no evidence that the legislature intended to prohibit Lock's convictions here and thus the counts are not multiplicitous. 7 See id.; State v. Gulrud, 140 Wis. 2d 721, 730 , 412 N.W.2d 139 (Ct. App. 1987) (We need not develop a defendant's arguments for him.). ¶ 39.

2011State v. Smaxwell, 2000 WI App 112, ¶ 5 , 235 Wis. 2d 230 , 612 N.W.2d 756 .

2011State v. Smaxwell, 2000 WI App 112, ¶ 5 , 235 Wis. 2d 230 , 612 N.W.2d 756 .

2010For an explanation of errors subject to harmless error analysis versus structural errors, see Neder v. United States, 527 U.S. 1, 8-10 (1999); State v. Ford, 2007 WI 138, ¶¶ 42-43 , 306 Wis. 2d 1 , 742 N.W.2d 61 ; State v. Harvey, 2002 WI 93, ¶¶ 35-39 , 254 Wis. 2d 442 , 647 N.W.2d 189 .

2010For an explanation of errors subject to harmless error analysis versus structural errors, see Neder v. United States, 527 U.S. 1, 8-10 (1999); State v. Ford, 2007 WI 138, ¶¶ 42-43 , 306 Wis. 2d 1 , 742 N.W.2d 61 ; State v. Harvey, 2002 WI 93, ¶¶ 35-39 , 254 Wis. 2d 442 , 647 N.W.2d 189 .