On Point blog, page 4 of 50
Sentencing Conditions, § 973.049(2): No-Contact Order – “Victim” Definition
State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC;State Resp.; Reply
(Issue of plea bargain breach discussed in separate post, here.)
On sentencing Campbell for sexual assault of his daughter, the trial court had, and properly exercised, authority under § 973.049(2) to bar Campbell’s contact with his son until completion of sex offender treatment.
Plea Bargain Breach: Prosecutorial Failure to Make Agreed IC-Recommendation not Material Breach
State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply
(Sentencing issue in the case discussed separately, here.)
Plea Bargain – Breach
The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision,
TPR – Knowing Admission to Grounds, Ineffective Assistance
State v. Kenneth E., 2010AP1520, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate
(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs. Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice,
TPR – Exercise of Discretion
State v. LaDonna E., 2010AP1733, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for LaDonna E.: Jane S. Earle
Termination of parental rights upheld. Mother (LaDonna E.), after defaulting on grounds phase, challenged termination on basis that child’s aunt, who had custody and wanted to adopt child, should be appointed guardian instead.
¶9 The circuit court noted that “Kenny will be adopted.” See Wis.
State v. Michael S. Henderson, Milwaukee Co. Circ. Ct. No. 10CF1101
circuit court decision (Judge Richard Sankovitz); for Henderson: Paul A. Ksicinski, SPD, Milwaukee Trial
Illegal Voting, § 12.13(1)(a) – Voting Rights Acts
Henderson is charged with illegal voting because he allegedly voted notwithstanding his status as a felon still under supervision (which would made him ineligible to vote). He raises as a defense the Voting Rights Act of 1965, 45 U.S.C. § 1973(a): the Act bars disenfranchisement “on account of race”
Maurice Coleman v. Ramos, 7th Cir No. 08-3537, 11/19/10
seventh circuit decision; denying rehearing and amending panel decision, Coleman v. Hardy (per curiam , 2/7/11)
Habeas – Defaulted Claim – Assertion of Innocence
Although Coleman defaulted his ineffective assistance of counsel claim by failing to raise it in state court, his allegation of actual innocence supports a “gateway” evidentiary hearing to determine whether to reach the merits of the defaulted claim.
Default may be excused if the petitioner can show 1) “cause”
OWI – § 346.65(2), Second or Subsequent Offense: Out-of-State Administrative Non-Refusal (“Zero Tolerance”) Suspension
State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply
Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement,
Warrantless Blood Draw – Driving under Influence of Drugs
State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10
court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply
Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis.
USA v. Donald W. Simms, II, 7th Cir No. 10-1055, 11/23/10
Milwaukee’s ordinance-created “winter rules” with respect to snow removal effectively establish an “easement” such that police could enter a yard and rifle through a homeowner’s garbage cart. Although the cart is within what is normally considered “curtilage,” and thus protected by privacy concerns, the intrusion of the curtilage here is “lawful,” given this local law allowing garbage collectors to intrude on such areas.
But the fact that the defendant’s garbage carts were (we may assume) within the curtilage of his home does not conclude the constitutional analysis.
Guardianship – Respondent’s Right to Personal Presence
Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate
Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed.
¶5 A determination that a person “is incompetent … is as difficult a judgment as a judge is called upon to make,” and thus the legislature has adopted procedural requirements “to mitigate the chances of error.” Byrn v.