On Point: D. Waiver of issues/arguments

Questions presented:

1.  Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment.

2.  Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

State v. Arron A.-R., 2014AP142, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity

Arron delinquency adjudication for one count of first degree sexual assault is supported by the testimony of the victim, S.F., but the adjudication for a second count is reversed because the trial court erred in believing that the charge required only sexual contact, not sexual intercourse.

State v. Eric L. Nigl, 2014AP1876-CR, District 4, 4/30/15 (not recommended for publication); case activity (including briefs)

Nigl challenged his conviction for a sex offender registry violation by attacking the validity of the juvenile delinquency disposition that required him to register. The court of appeals holds Nigl forfeited his challenge because he could have sought a waiver or stay of the registration requirement at the time of the delinquency adjudication.

Sheboygan County v. Terry L.M., 2014AP2010, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket

The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.

State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs

This decision smells like SCOW bait.  Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.

State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)

A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.

City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.

State v. Jose O. Gonzalez-Villarreal, 2013AP1615-CR, District 1, 1/27/15 (not recommended for publication); case activity

The court of appeals rejects Gonzalez-Villarreal’s challenge to his conviction for possessing child pornography based on claims that: his right to a speedy trial was violated; discovery restrictions violated his right to equal protection; other acts evidence was erroneously admitted; the trial court rejected his modified jury instruction on possession; the court erroneously exercised its sentencing discretion.

City of Chippewa Falls v. Douglas M. Buchli, 2014AP1422, District 3, 12/23/14 (1-judge decision; ineligible for publication); case activity

There was probable cause to arrest Buchli for OWI despite the fact the police investigation discovered inconsistent information—including an admission by Buchli’s companion, Mahoney, that she was driving.

City of Brookfield v. Cassandra L. Gissal, 2014AP1751-FT, District 2, 12/23/14 (1-judge decision; ineligible for publication); case activity

At trial Gissal challenged the admissibility of her statements to police because she wasn’t given Miranda warnings, but the trial court ruled she wasn’t in custody for Miranda purposes. On appeal she abandons this claim and argues instead that allowing the officer to testify to her statements violated her Fifth Amendment privilege and that she wouldn’t have testified at trial if the officer had been barred from relating her statements.