State v. Cassius A. Foster
856 N.W.2d 847
Wis.2014Background
- Foster was convicted at trial of OWI, sixth offense, and given probation with one year jail time for violation of Wis. Stat. § 346.63(l)(a).
- He moved for resentencing claiming trial counsel was ineffective for not collaterally attacking three Oklahoma convictions used to enhance his sentence.
- Machner hearing showed counsel believed collateral attack was a sentencing issue and a trial strategy to avoid jeopardizing plea negotiations; the circuit court found no prejudice.
- Oklahoma convictions were challenged on waivers of right to counsel; the State proved the waivers were knowing, intelligent, and voluntary.
- Post-conviction counsel filed a Wis. Stat. § 809.32 no-merit report; the court of appeals accepted it and affirmed Foster’s conviction.
- McNeely (2013) abrogated Bohling’s per se exigency rule affecting the blood draw, prompting review of the Fourth Amendment issue and the proper remedy
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| McNeely retroactivity and blood draw legality | Foster relies on McNeely to challenge the blood draw | State argues McNeely applies prospectively or not at all | McNeely retroactive; blood draw unconstitutional; but good-faith Bohling reliance bars suppression |
| Remedy for unconstitutional blood draw | Suppression is the proper remedy for the unconstitutional draw | Good-faith reliance precludes suppression under Dearborn/Kennedy | Good faith exception applies; suppression not required |
| Acceptance of the no-merit report | Court of appeals failed to adequately review potential merits per Anders/Ernst | Court of appeals properly exercised discretion under no-merit procedure | Court of appeals reasonably exercised its discretion and accepted the no-merit report |
| Ineffective assistance claim prejudice requirement | Prejudice shown, collateral attack likely to succeed | No prejudice shown since Ernst burden not met | No arguable merit; Foster failed to show prejudice; no error in accepting no-merit |
Key Cases Cited
- State v. Bohling, 173 Wis. 2d 529 (1993) (rules for warrantless blood draws incident to arrest; four-factor test (clear indication, exigency, reasonable method, no objection))
- Missouri v. McNeely, 569 U.S. (133 S. Ct. 1552) (2013) (rejected per se exigency; totality of circumstances approach; retroactivity questions raised)
- Kennedy v. State, 2014 WI 132 (2014) (applies good-faith exception analysis to Bohling framework post-McNeely)
- State v. Ernst, 283 Wis. 2d 300 (2005) (two-step test for knowing waiver in collateral attack on prior convictions)
- Anders v. California, 386 U.S. 738 (1967) (no-merit review procedure when appellate counsel believes appeal frivolous)
- State v. Hahn, 238 Wis. 2d 889 (2000) (collateral attack on prior convictions based on denial of right to counsel; prima facie showing)
- State v. Sutton, 339 Wis. 2d 27 (2012) (limits and application of Anders/No-merit review rules)
- State v. Hess, 327 Wis. 2d 524 (2010) (judicial integrity considerations in good-faith analysis)