On Point: D. Waiver of issues/arguments

State v. Deshon C. Matthews, 2011 WI App 92 (recommended for publication); for Matthews: Paul G. Bonneson; case activity

Terry Stop – Reasonable Suspicion

Reasonable suspicion supported stop of Matthews, when police on patrol saw him wearing a ski mask and hoodie late at night in a high-crime area near a woman who was walking away form him and who appeared to be frightened.

Columbia County v. Fred A. Ederer, 2010AP2369, District 4, 5/12/11

court of appeals decision (1-judge, not for publication); for Ederer: John Smerlinski; case activity

Ederer’s no contest plea waived his right to appeal suppression issue in this OWI-1st (therefore, civil) case. His reliance on County of Ozaukee v. Quelle, 198 Wis. 2d 269, 275-76, 542 N.W.2d 196 (Ct. App. 1995) (court should consider 4-factor test in determining whether to impose waiver bar) is misplaced:

¶5        Ederer acknowledges that Quelle was partially overruled on other grounds by Washburn County v.

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part III (evidentiary hearing, GP advice), here.

Habeas – Procedural Fault

Kerr’s pro se § 974.06 motion asserted ineffective assistance of counsel as a ground for relief.

City of West Allis v. Susan Schneidler, 2010AP2531, District 1, 4/5/11

court of appeals decision (1-judge, not for publication); for Schneidler: Thomas C. Simon; case activity

Tip from an identified citizen informant – that she had seen Schneidler drinking alcohol before driving off – supported stop of Schneidler’s car, without requiring independent corroboration.

¶18      In short, Parr was a reliable witness who told police that she personally observed Schneidler drink alcohol and then drive and who made herself available to the police for questioning. 

State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Preservation of Issue – Motion in Limine

Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.

State v. Basil E. Ryan, Jr., 2011 WI App 21; case activity; Ryan BiC; State Resp.; Reply

¶26      “‘Judicial estoppel is a doctrine that is aimed at preventing a party from manipulating the judiciary as an institution by asserting a position in a legal proceeding and then [later] taking an inconsistent position.’”  State v. White,

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,

State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10

court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br.

Appellate Procedure – Affirmance on Different Theory than Posited Below

¶31      We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument. 

State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Guilty Plea – Withdrawal – Presentence

The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.

The particular grounds asserted – no factual basis for plea;

State v. Christopher Jones, 2009AP2761-CR, District 1, 9/28/10

court of appeals decision (3-judge, not recommended for publication); for Jones: Jeremy C. Perri, SPD, Milwaukee Appellate; BiC; Resp.; Reply

The court rejects a claim of an “end-run” around the plea bargain, which limited the State’s recommendation to 10 years imprisonment while leaving the “configuration” of confinement and supervision to judicial discretion, based on prosecutorial comments:

• the “whole matter was “aggravated by the defendant’s record,”