On Point blog, page 5 of 24
COA overlooks procedural bar, State’s failure to file to a response brief; affirms based on well-settled plea withdrawal case law
State v. William J. Buffo, 2022AP1803-4-CR, District IV, 7/13/23, 1-judge decision ineligible for publication; case activity (briefs available)
In another messy pro se appeal, COA overlooks the State’s failure to file a response brief and affirms the circuit court’s “evidently correct” decision.
Parent’s challenges to TPR order affirmed under deferential standard of review
State v. M.H., 2023AP732, District I, 7/11/23, 1-judge decision ineligible for publication; case activity (briefs not available)
M.H. raises two challenges to a circuit court order terminating her parental rights. Under an exceedingly deferential standard of review, both claims fail.
Defense Win! COA orders protective placement petition dismissed on remand
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.
Defense win: Defects in plea colloquy require plea withdrawal
State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.
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State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)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?
State’s failure to address defendant-respondent’s arguments is taken as a concession
State v. Eric Allen Erickson, 2021AP1826-CR, District 4, 3/31/22 (one-judge decision; ineligible for publication); case activity (including briefs)
The state appealed a circuit court order granting Erickson’s collateral attack of a prior OWI conviction. Erickson’s response brief argued that the state ignored the relevant facts and relied on irrelevant facts. Erickson also cited authorities that “squarely rebut” authorities relied on by the state. Despite Erickson’s onslaught against its argument,
Court of appeals excuses state’s failure to file any brief; upholds denial of expunction
State v. Sean B. Day, 2021AP1018, 11/24/21, District 4 (one-judge decision; ineligible for publication); case activity (including brief)
Day was initially charged with repeated sexual assault of a child for sexual contact with a 14-year-old when he was 17. He ended up pleading to a single count of fourth-degree sexual assault and was put on probation. The circuit court failed to mention expunction at the sentencing hearing, but later–both in writing and at the postconviction motion hearing–it gave the reasons it did not find expunction appropriate.
Not egregious….yet
State v. Santiago B. Rios, 2020AP2132-CR, was slated to be decided today, but it wasn’t. Instead, the court of appeals issued an order directing the state (represented here by the district attorney’s office) to file a respondent’s brief.
COA finds probable cause to search car on auto transport
State v. Synika Antonio Kirk, 2019AP175, 9/22/20, District 3 (not recommended for publication); case activity (including briefs)
You know, those semis that carry like 6 or 10 cars. Kirk owned a 1989 Jaguar that was riding on such a vehicle along with several other cars. A Kansas trooper pulled the truck over and asked to inspect the driver’s paperwork. The trooper would testify that the driver’s logbook had an entry he found strange: a two-day stay in Reno, Nevada after the truck was loaded–a stop the trooper called “not normal.” He also didn’t buy the driver’s explanation that he had spent those two days trying to find tires for his truck.
Defense win! COA affirms suppression due to State’s failure to refute the basis for the circuit court’s ruling
State v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)
The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.