On Point: D. Waiver of issues/arguments

Waukesha County v. M.A.C., 2023AP533, District II, 7/28/23, petition for review granted 12/12/23; reversed 7/5/24; 1-judge decision ineligible for publication; case activity (briefs not available)

In a Chapter 51 case with troubling due process implications, COA is compelled to affirm by virtue of what it believes to be binding precedent.

C.T.L. v. M.L.K., 2023AP402, District III, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)

The court of appeals confronts two alleged errors stemming from M.L.K.’s TPR jury trial and affirms based on harmless error.

Department on Aging v. R.B.L., 2022AP1431, District I, 6/27/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

In this protective placement appeal raising two interesting issues related to the circuit court’s competency, the court of appeals reverses with instructions to dismiss the underlying petition.

State v. Eric J. Debrow, 2023 WI 54, 6/23/23, reversing an unpublished court of appeals decision; case activity (including briefs)

In yet another reversal of a defense win, SCOW defers to the circuit court’s decision denying a motion for mistrial but slightly muddies the waters as to the proper legal analysis when assessing mistrial claims on appeal.

State v. I.B., 2022AP911 & 2022AP912, District I, 6/6/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

Although the State appears to have conceded it did not follow the statutory requirements for proper service of the petition(s) in this TPR, Ivy’s appeal fails because she did not object below. And, because the error could have been cured if counsel had objected, her ineffectiveness claim also fails.

State v. R.A.M., 2023AP441, 6/6/23, District 1 (one-judge decision; ineligible for publication); petition for review granted 9/26/23; affirmed 6/25/24 case activity

R.A.M. was defaulted on grounds after she missed a single hearing. While the “hearing” was the fourth day of her TPR court trial, she had appeared at every prior hearing, including the first three days of trial.  As all too commonly happens, the circuit court determined that R.A.M.’s single non-appearance was “egregious and in bad faith and without justification” without ever hearing from her, and held that she had waived her right to counsel under Wis. Stat. § 48.23(2)(b)3. The court of appeals notes the paucity of grounds for this decision in a footnote, but as R.A.M. doesn’t challenge the finding of egregiousness, the opinion doesn’t otherwise address it. It does address what came next: rather than waiting the two days the same statute requires to hold a dispositional hearing after a counsel waiver, the court held the hearing on the same day and terminated R.A.M.’s rights.

State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023;  COA decision affirmed, 2024 WI 14, case activity (including briefs, petition for review, and state’s response)

Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was assigned to Judge Ellen K. Berz. Counsel was appointed to represent Davis 65 days later, and after consultation with his newly appointed counsel, Davis filed a request for substitution. Judge Berz denied the request as “untimely.” The supreme court will now review whether the delayed appointment of counsel provides an exception to the strict adherence to Wis. Stat. § 971.20(4)’s deadline to file a request for substitution.

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)

Pursuant to the plea agreement, the state agreed to “not recommend a specific term of imprisonment.” At sentencing, the state argued for 27 years imprisonment, consisting of 12 years initial confinement and 15 years extended supervision. Nietzold objected, was denied a postconviction motion hearing in the circuit court, but the court of appeals reversed and ordered resentencing before a different judge. Now, a unanimous Wisconsin Supreme Court holds that the state “cured” its undisputed material and substantial breach because the prosecutor “acknowledged the blunder and modified the State’s recommendation to an undefined prison term-exactly what Nietzold agreed to.” (Opinion, ¶14).

State v. Jeremy Joseph Hamilton, 2022AP1350-CR, District 2, 03/01/2023, (one-judge decision, ineligible for publication) case activity

Some readers of this decision might find themselves wondering why there’s no equivalent to baseball’s “tie goes to the runner” rule in criminal appeals. Others might find themselves researching the rule of lenity. However, it turns out there is no such rule in baseball, and the rule of lenity only assists defendants as a canon of statutory construction where a “grievous ambiguity” exists. See State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400; see also State v. Williams, 2002 WI 1, ¶19, 249 Wis. 2d 492, 637 N.W.2d 733 (rejecting a “close case” rule which would favor criminal defendants in breach of plea claims). As the court of appeals puts it: “…this is a very, very close case…[but] even close cases have to be decided one way or another…” (Opinion, ¶14).

Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity

“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.