On Point: 1. Appeals

State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes that it can’t support the information now challenged; and defendant’s postconviction motion showed that information was inaccurate and also established a basis for believing that he didn’t have an adequate opportunity to refute the information.

State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson

Issue: Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense.
Holding:

¶14 In this case, we need not decide whether a defendant may waive territorial jurisdiction altogether-that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin.

State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth

Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24.

State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.

Holding:

¶22. This is classic judicial estoppel.

Barbara R.K. v. James G., 2002 WI App 47

Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.

Holding:

¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district …

State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith

Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.

Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic constitutional right implicated, and he concedes, ‘[t]here is no evidence in the record as to the time separation,

State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate

Issue/Holding:

¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to — is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims,

State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt

Issue/Holding:

¶7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the implied consent statute involve questions of law, which we also review independently.

State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School

Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.

The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2.

State v. Harold C. Mikkelson, 2002 WI App 152
For Mikkelson: Michael Yovovich, SPD, Madison Appellate

Issue: Whether the state waived an appellate argument in opposition to suppression by not raising it at the suppression hearing.

Holding:

¶14 “The waiver rule serves several important objectives. Raising issues at the [circuit] court level allows the …. court to correct or avoid the alleged error in the first place,