On Point: 1. Appeals

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity

Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.

State v. O.F., 2022AP1703, District 1, 01/18/2023 (one-judge decision; ineligible for publication); case activity

Ultimately, the issue addressed by the court of appeals is whether O.F. received ineffective assistance of counsel where trial counsel was alleged to have “violated his duty of confidentiality and loyalty” to his client. O.F.’s claims were based on multiple statements made by his trial counsel that arguably disclosed confidential information to the court and painted O.F. in a bad light. The court rejects O.F.’s claim primarily because he failed to establish “any prejudice” and also rejects O.F.’s assertions that his IAC claim was structural and thus did not require a post-disposition motion or a Machner evidentiary hearing. (Opinion, ¶¶22-25).

State v. E.B., 2022AP1882, District 1, 01/18/2023 (one-judge decision, ineligible for publication), case activity

This case concerns only the disposition phase of E.B.’s TPR case. She argued that the circuit court erroneously exercised its discretion with regard to the best interest of the child factors set forth in Wis. Stat. § 48.426(3).  Specifically, E.B. argued that the circuit court did not give her own testimony enough weight and gave too much weight to the foster mother’s testimony. However, E.B. does not argue that the circuit court failed to consider any specific factor or made clearly erroneous findings based on the evidence presented at disposition. Because circuit courts retain discretion to regarding “the weight assigned to each factor and the credibility assigned to each witness’s testimony,” the court affirms the TPR order. (Opinion, ¶15).

State v. Jeffrey W. Butler, 2021AP2212-CR, 1/11/23, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

At Butler’s restitution hearing, the circuit court expressed frustration and disappointment that neither party presented any documentation regarding a disputed restitution claim. The court stated, “I have nothing other than testimony saying [the victim’s] done all this stuff and Googled it and she doesn’t bring in any receipts.” The court continued: “Nothing, I have nothing…[s]o the court is left with, based on testimony, what’s a reasonable amount of restitution…” The court then concluded, “I’ll put $500 toward clothing.” Butler appealed and the court of appeals affirms, holding that the victim’s testimony alone is sufficient to support the restitution award.

State v. Steven W. Bowers, 2023 WI App 4; case activity (including briefs)

In this important decision addressing a novel Fourth Amendment issue, the court of appeals holds that Bowers had a reasonable expectation of privacy in the contents of his Dropbox account, despite the fact he (1) used his work email address to create the account and  (2) uploaded case files and shared them without permission. (Opinion, ¶43). The court further holds that although investigators had probable cause to search the account for evidence of Bowers’ alleged crime, no exigent circumstances justified the warrantless search. (¶3).

State v. Kevin Richard Raddemann, 2022AP668-CR, 12/21/22, District II (1-judge opinion, ineligible for publication); case activity (including briefs).

In this misdemeanor OWI case, Raddemann moved to suppress evidence obtained following a stop of his vehicle. After the suppression hearing, he moved for reconsideration, arguing that a City of Hartford cemetery ordinance, which was the basis for the stop, was unconstitutionally vague. The circuit court denied Raddemann’s motion to reconsider because it was untimely. ¶5.

State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)

State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)

A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.

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.

State v. Todd W. Vaughn, 2022AP644-Cr, 9/29/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Vaughn was convicted of operating a vehicle with a PAC, second offense. He claimed that the deputy who stopped him lacked reasonable suspicion because he acted solely on an uncorroborated anonymous tip. The court of appeals held that the tip provided reasonable suspicion for the stop because  it had “indicia of reliability” that were “suitably corroborated” as required by State v. Williams, 2001 WI 21, ¶31, 241
Wis. 2d 631, 623 N.W.2d 106.