On Point blog, page 13 of 25
Defendant forfeited challenge to sex offender registration requirement
State v. Eric L. Nigl, 2014AP1876-CR, District 4, 4/30/15 (not recommended for publication); case activity (including briefs)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.
Continuation of Chapter 55 commitment upheld despite defects in special verdict and instructions
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.
Court of appeals affirms plea though defendant misunderstood appellate rights; trips over law governing plea withdrawal and IAC
State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs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.
Proceeding to sentencing despite misunderstanding about plea agreement defeats claims for plea withdrawal, resentencing
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.
Circuit court lacked subjected matter jurisdiction to hear OWI, first offense
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.
Court of appeals rejects multiple-issue challenge to child pornography conviction
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.
Facts as found by circuit court supported probable cause to arrest for OWI
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.
Issue raised for the first time on appeal is forfeited
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.
Lower burden of proof at ch. 980 discharge trial doesn’t violate due process
State v. Thornon F. Talley, 2015 WI App 4; case activity
A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.
Voir dire questions by prosecutor that elicited promise to convict if elements were proven did not deny right to jury trial
State v. Frank M. Zdzieblowski, 2014 WI App 130; case activity
The prosecutor during voir dire elicited a promise from prospective jurors that they would convict if the State proved the elements of the charged crimes beyond a reasonable doubt, and then reminded the jurors of that promise in his rebuttal closing argument. The court of appeals holds the prosecutor’s unobjected-to voir dire questioning and rebuttal closing argument neither rose to the level of plain error nor warranted a new trial in the interest of justice.