State v. Michael J. Leighton

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 30, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1949-CR Cir. Ct. No. 2018CM1416

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL J. LEIGHTON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Kenosha County:
JASON A. ROSSELL, Judge. Affirmed.

¶1 GROGAN J.1 Michael J. Leighton appeals the order dismissing the
criminal complaint against him without prejudice, arguing the circuit court should

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1949-CR

have dismissed it with prejudice. Leighton asserts the circuit court erroneously
exercised its discretion because “it did not reason towards a rational conclusion
based on the facts.” Because the circuit court considered the pertinent facts,
applied the correct law, and reached a reasonable determination, it did not
erroneously exercise its discretion. This court affirms.

I. BACKGROUND

¶2 In May 2018, victim J.A. discovered someone had stolen $160 in
cash and two credit cards from his wallet. The thief charged $942.79 at Target on
one of J.A.’s credit cards and also attempted to charge $1,173.11 at Wal-Mart.
After some investigation, the police identified Leighton as the person suspected of
committing these crimes. The State charged Leighton with one count of
misdemeanor theft as a repeater and one count of fraudulent use of a credit card as
a repeater, contrary to WIS. STAT. §§ 943.20(1)(a) & (3)(a), 943.41(5)(a),
939.51(3)(a), and 939.62(1)(a).

¶3 In April 2020, while Leighton was incarcerated at Stanley
Correctional Institution serving a sentence on other crimes, Leighton sent a request
to the Kenosha County District Attorney for “prompt disposition” of this case
pursuant to WIS. STAT. § 971.11.2 Having heard nothing on his theft/credit card

2
As relevant, WIS. STAT. § 971.11 provides:

(continued)

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No. 2021AP1949-CR

fraud case, Leighton filed a motion on February 12, 2021, to dismiss the case
based on the § 971.11 violation. On February 16, 2021, a Kenosha County Court
Commissioner held Leighton’s initial appearance and heard his motion to dismiss.
The prosecutor told the Commissioner (and later the circuit court) that its
records—referencing a writ in its file to bring Leighton from Stanley Correctional
to court for intake—showed an attempt to hold an initial appearance on May 21,
2020, but that for some unknown reason, the writ was never signed and the
May 21, 2020, planned initial appearance never happened. Because the delay in

(1) Whenever the warden or superintendent receives notice of an
untried criminal case pending in this state against an inmate of a
state prison, the warden or superintendent shall, at the request of
the inmate, send by certified mail a written request to the district
attorney for prompt disposition of the case. The request shall
state the sentence then being served, the date of parole eligibility,
if applicable, or the date of release to extended supervision, the
approximate discharge or conditional release date, and prior
decision relating to parole. If there has been no preliminary
examination on the pending case, the request shall state whether
the inmate waives such examination, and, if so, shall be
accompanied by a written waiver signed by the inmate.

….

(3) If the crime charged is a misdemeanor, the district attorney
shall either move to dismiss the charge or bring it on for trial
within 90 days after receipt of the request.

….

(7) If the district attorney moves to dismiss any pending case or
if it is not brought on for trial within the time specified in sub.
(2) or (3) the case shall be dismissed unless the defendant has
escaped or otherwise prevented the trial, in which case the
request for disposition of the case shall be deemed withdrawn
and of no further legal effect. Nothing in this section prevents a
trial after the period specified in sub. (2) or (3) if a trial
commenced within such period terminates in a mistrial or a new
trial is granted.

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No. 2021AP1949-CR

Leighton’s case violated the time requirements set forth in § 971.11, the
Commissioner dismissed the case, but did so without prejudice.

¶4 Leighton then filed a request for de novo review by the circuit court
because he thought his case should have been dismissed with prejudice. In May
2021, the circuit court held a hearing on that motion. The circuit court focused on
what happened in the case after Leighton made his WIS. STAT. § 971.11 dismissal
motion. It noted that Leighton filed his prompt disposition request on April 3,
2020—right when “the pandemic that we are currently in began to extract its toll.”
The circuit court then referenced the factors in State v. Davis, 2001 WI 136, 248
Wis. 2d 986, 637 N.W.2d 62, and explained that our supreme court had tolled time
limits via a March 22, 2020 order, which made it impossible for the State to hold a
jury trial within the required 90-day time period. The circuit court then explained
the supreme court extended its first order on May 22, 2020, and that the order was
still in effect at the time of Leighton’s May 2021 hearing.

¶5 In considering the Davis factors, the circuit court noted that this
delay did adversely impact Leighton; however, it expressed concern about the
victim in the case and the victim’s constitutional right to restitution. The circuit
court noted this case involved a significant amount of money—allegations “of
over $1,000 of loss.” The circuit court acknowledged it must, “under the Davis
factors,” consider “the effect of the delay and dismissal on the victim.” It then
determined that dismissal without prejudice would not “change[] any of
Mr. Leighton’s legal defenses in this matter nor prejudice[] his ability to defend
against this case.” After considering these factors, the circuit court decided that
dismissal without prejudice was reasonable. Leighton now appeals.

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No. 2021AP1949-CR

II. DISCUSSION

¶6 Leighton contends the circuit court erroneously exercised its
discretion when it dismissed his theft/credit card fraud case without prejudice.
There is no dispute that circuit courts have the discretion under WIS. STAT.
§ 971.11 to dismiss a criminal case with or without prejudice when time deadlines
are not met. See Davis, 248 Wis. 2d 986, ¶¶5, 14, 27, 34 (holding that circuit
courts have discretion to dismiss a case with or without prejudice under § 971.11).
The circuit court’s decision to dismiss a case under § 971.11 is reviewed under the
erroneous exercise of discretion standard. Davis, 248 Wis. 2d 986, ¶28. “An
erroneous exercise of discretion results when the exercise of discretion is based on
an error of law” or “when the circuit court does not consider the facts of record
under the relevant law or does not reason its way to a rational conclusion.” Id.

¶7 Davis instructs that in ascertaining whether a case should be
dismissed with or without prejudice, circuit courts “should consider a number of
factors, including, but not limited to”:

the reasons for and the length of the delay in bringing the
criminal case on for trial; whether the nature of the case
makes it unreasonable to expect adequate preparation
within the statutory time period; an accused’s conduct
contributing to the delay; an accused’s waiver of the
statutory right to prompt disposition; the harm to an
accused resulting from the delay, such as anxiety and
concern; the effect of the delay on an accused’s legal
defenses; the effect of the delay on the programs and
movement within the institutions available to an accused;
the effect of the delay on the orderly rehabilitation process
of an accused within the Department of Corrections; the
effect of the delay on an accused’s concurrent sentencing
possibilities; the effect of the delay on an accused’s
possible transfer to a less secure facility; the effect of the
delay on an accused’s opportunity for parole; the effect of
the delay on the transfer of the accused to another
institution; the effect of the delay and dismissal on the

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No. 2021AP1949-CR

public interest in the prompt prosecution of crime; and the
effect of the delay and dismissal on the victim.

Id., ¶29 (footnote omitted). The circuit court here considered the appropriate
Davis factors and found that the victim’s rights weighed heavily in its decision to
dismiss without prejudice. If Leighton’s case had been dismissed with prejudice,
the victim of Leighton’s alleged crimes would have been without a remedy to
recover restitution in the criminal matter. The transcript reflects the circuit court
gave thoughtful consideration to both the effect of the State’s violation on
Leighton—whether it prejudiced him—and the effect on the victim. The circuit
court also assessed the reasons offered for the delay and reached a rational
determination that dismissal without prejudice was appropriate in Leighton’s case.
Although this court is certainly troubled by the fact that Leighton’s case, as
expressed by the prosecutor, “for whatever reason … got put on the back burner,”
the record reflects the circuit court properly exercised its discretion. Accordingly,
the standard of appellate review requires this court to affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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