On Point blog, page 5 of 50
DNA Surcharge – Timeliness of Challenge
State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief
Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits:
¶5 When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification. Pursuant to WIS. STAT. § 973.19, a defendant may move for sentence modification within ninety days after sentencing.
§ 944.20(1)(a), Lewd & Lascivious
State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication)
The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another.
¶9 The language at issue is unambiguous as applied to the facts in this case. The subsection prohibits “an indecent act of sexual gratification with another with knowledge that they are in the presence of others.” WIS.
Notice of Mandatory Minimum
State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90
court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp.
Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years on each count) didn’t violate due process.
“In-Home Seizure” – “Constructive Entry”
City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus
Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came out or they got a warrant;
Juror Disqualification – In-Law of Presiding Judge
State v. Sharon A. Sellhausen, 2010 WI App 175, reversed, 2012 WI 5; for Sellhausen: Byron C. Lichstein; case activity
¶1 Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors. The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her.
Reasonable Suspicion for PBT
County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply
Odor of intoxicants insufficient, alone, to support administering PBT.
¶20 When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial. For example,
Reasonable Suspicion, Drug Use
State v. Joseph E. Jenamann, 2010AP1825-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply
Continuing detention, following routine traffic stop for loud muffler and after Jenamann passed sobriety tests, was unlawful:
¶12 The only suspicious factors suggesting drug activity were bloodshot, glassy eyes, shakiness, and a nervous suspect.
Sentencing – Inaccurate Information
State v. David Derrell Morgan, 2009AP3081-CR, District 1, 11/23/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Mary D. Scholle, SPD, Milwaukee Appellate; Morgan BiC; State Resp.; Reply
Claims that the sentencing court relied on inaccurate information with respect to Morgan’s employment history and family relationships rejected, on ground of failure to show reliance:
¶12 Morgan has not shown that the circuit court actually relied on the allegedly inaccurate information.
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.