On Point: C. Briefs/Appendices

Sauk County v. R.M.C., 2017AP1860, May 3, 2018, District 4 (not recommended for publication); case activity

To appoint a guardian of the person or estate, the circuit court has to find 4 elements by clear and convincing evidence. This appeal focuses on §54.10(3)(a)2–the second element, which states:

[B]ecause of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety. WIS. STAT. § 54.10(3)(a)2.

State v. Devin T. White, 2016AP119-CR, 4/10/18, District 1, (not recommended for publication); case activity (including briefs)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.

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. 

State v. Morris Rash, 2016AP2494-CR, District 1, 1/30/18 (not recommended for publication); case activity (including briefs)

Morris Rash was convicted of substantial battery and being a felon in possession of a firearm after a jury trial. When it came time for postconviction proceedings and/or an appeal, it turned out that some photographs used as exhibits at the trial were not in the court record.

State v. Brad L. Conger, 2017AP860-CR, 10/18/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Brad Conger went on trial for an OWI and the associated PAC. His defense was an “alcohol curve” theory that the breath tests result did not reflect his true BAC at the time he was driving. His attorney moved to strike a juror who sat on another OWI/PAC case the preceding week–one featuring the same defense attorney, where the jury convicted on the PAC and apparently rejected the offered alcohol curve defense. The circuit court found the juror unbiased; the court of appeals now affirms.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Whether the doctrine of hot pursuit always justifies a forcible warrantless entry into the residence of one suspected of minor criminal activity. In the present case, the court of appeals declined to consider Mr. Delap’s argument that the conduct of law enforcement in this case, even if justified as legitimate ‘hot pursuit’ of a fleeing suspect, was nonetheless unreasonable under the Fourth Amendment. Although Mr. Delap’s argument presented a chain of reasoning and citation to legal authority, the court of appeals characterized the argument as ‘undeveloped’ and did not consider it.

State v. Santos Lee Hernandez, 2017AP62-CR, 7/11/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Hernandez filed a postconviction motion arguing that he pled guilty to lewd and lascivious behavior while he was drunk–so drunk that he incorrectly told the court that he had not consumed alcohol within the previous 24 hours, that he understood the rights he was waiving, and that there was a factual basis for his plea. In rejecting his claim, the court of appeals commits an error that continues to dog postconviction motions.

State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity

The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.

Village of DeForest v. Alexei Strelchenko, 2016AP1814, 2/16/17, District 4 (1-judge opinion, ineligible for publication); case activity

Just how did Strelchenko misuse his drone? Unfortunately, we do not know. He proceeded pro se and neglected to include a copy of the trial transcript in the appellate record. It is the appellant’s job to ensure that the record is sufficient for the court of appeals to review the issues.

Review of a per curiam court of appeals decision; case activity (including briefs)

Issues (from the petition for review):

1. When a police officer performs a lawful traffic stop, is it reasonable for the officer to make contact with the driver to ask for the driver’s name and identification and to explain the basis for the stop, even if the reasonable suspicion supporting the stop has dispelled by the time the officer does so?

2. When an officer is unable to request a driver’s name and identification and explain the basis for a traffic stop because, as in this case, the driver indicates that the driver’s side window and door are both broken, is the officer then permitted to open the passenger’s side door to achieve that goal?