On Point blog, page 1 of 2
COA affirms denial of suppression motion, but reminds state of basic briefing rules
State v. Mitchell D. Butschle, 2023AP2120-CR, 5/8/24, District II (one-judge decision, ineligible for publication); case activity
On appeal from a conviction for operating with a detectable controlled substance, the court rejects Butschle’s claims that police lacked probable cause to arrest. The court affirms because “there were enough indicators of impairment to satisfy probable cause to arrest, including (1) “a strong odor of alcohol,” (2) “Butschle’s eyes were bloodshot and glassy,” (3) “the stop occurred just after 2:00 a.m., which is bar time,” and (4) “Butschle failed the HGN test and showed balance indicators on the other two [FSTs].” Op., ¶¶10-11.
COA once again rejects arguments that “direct evidence” from adoptive resources is required at a TPR dispositional hearing
Brown County D.H.S. v. A.K., 2023AP730, 9/6/23, District III (one-judge decision; ineligible for publication); case activity (briefs not available).
A.K. concedes that the circuit court properly exercised its discretion at this dispositional hearing, but argues that the order must still be reversed as there was no direct evidence from the proposed adoptive resource. COA rejects that argument and affirms.
SCOW will address whether prosecutor cured plea agreement breach by restating correct sentencing recommendation
State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)
Issue presented (composed by On Point based on the state’s PFR)
Was the state’s breach of its plea agreement with Nietzold remedied by the prosecutor’s withdrawal of the erroneous recommendation and restatement of the correct recommendation?
Officer had probable cause for OWI arrest based on circumstantial evidence
State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)
Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.
Court of appeals declares pro se appeal frivolous and orders sanctions
Village of McFarland v. Dale R. Meyer, 2018AP2130, 5/23/19, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)
Harsh! That’s best description for this court of appeals decision sanctioning Meyer for his pro se appeal of his first OWI. The decision runs afoul of Amek Bin- Rilla v. Israel, 113 Wis. 2d 514, 335 N.W. 384 (1983) and Howell v. Denomie, 2005 WI 81, 282 Wis. 2d 130, 698 N.W.2d 62. Hopefully, a lawyer will take Meyer’s appeal, file a petition for review, and at least get the frivolous finding reversed.
Court of appeals rejects pro se litigant’s appeal of conviction for obstructing an officer
State v. Dale Andrejczak, 2019AP285, 5/23/19, District 4 (1-judge opinion, ineligible for publication); case activity (including response brief only)
Talk about disparate treatment. In a considered, respectful ruling against a different pro se appellant, the court of appeals here affirms a conviction for obstructing an officer out of deference to the circuit court’s credibility determinations.
No record, no record citations, no legal argument, no chance on appeal
State v. Tracy E. McCarthy, 2018AP484, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
McCarthy’s pro se appeal in his disorderly conduct case fails on multiple grounds. His brief doesn’t cite to the record and the record doesn’t include any transcripts. He doesn’t develop any legal arguments in support of his claims about the alleged errors at trial. Moreover, there wasn’t a trial: he entered a plea to an ordinance violation.
Imperfect self-defense mitigates a charge of 1st-degree intentional homicide, not a charge of 1st degree-reckless homicide
State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)
White was convicted of 1st-degree reckless homicide. He argued that the trial court misapplied the law governing self-defense and improperly instructed the jury. The court of appeals repeatedly struggled to determine the thrust of his argument, but it appeared to be this:
¶15 Under White’s interpretation of the law, the State must prove beyond a reasonable doubt that he did not have these actual beliefs; therefore, the trial court erred in failing to instruct the jury of the State’s burden and that White could not be found guilty if the State did not prove he did not have these actual beliefs. Under White’s interpretation of the law, his actual belief controls, not whether his belief was reasonable.
The court of appeals also admonished White’s appellate counsel.
Court of appeals affirms reduction of sentence credit, scolds counsel for appellant and respondent
State v. Lance P. Howard, 2017AP677-688-CR, 2/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
How to irritate the court of appeals. If you haven’t figure that out yet, read this opinion.
Court scolds State for shoddy advocacy, holds alleged “stop” was actually an arrest without probable cause
State v. Thomas J. Anker, 2014 WI App 107; case activity
If a conservation warden shouted “you’re under arrest,” ordered you to stop walking, forcibly handcuffed you, and restrained you in his car until he could turn you over to investigating authorities, would you think you were under arrest or simply “temporarily detained”? The State, with a straight face, claimed these facts showed a Terry stop. The court of appeals, with a stern tone, rebuked the State and sharply criticized its brief.