On Point blog, page 25 of 120
SCOW U-turns, eliminates automatic stay for involuntary medication orders
State v. Joseph G. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)
Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that argument. Unfortunately, a majority then “limits” State v. Scott‘s automatic stay of involuntary med orders to those entered during postconviction proceedings. In truth, SCOW eliminated the automatic stay.
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State v. Robert K. Nietzold, Sr., 2021AP21-CR, petition for review of an unpublished court of appeals decision granted 4/13/22; case activity (including briefs and PFR)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,
Admission of photos provided to defense on day of trial was harmless
State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)
Lopez was convicted of battering his girlfriend, “Margaret,” with whom he had children. Before trial, the DA turned over photos depicting the bruising on Margaret’s face. But at trial, it surprised Lopez with a second set of photos showing the progression of her bruising. The defense objected. The circuit court refused to exclude the second set based on harmless error. The photos only depicted what Margaret and police described in their testimony. The court of appeals affirmed.
CoA rejects claims of Brady violation, IAC, and erroneous admission of unauthenticated letters
State v. Ronald Henry Griffin, 2020AP1750-CR, 2/22/22, District 1; case activity (including briefs)
Griffin and his friend, Taylor, were charged with sexually assaulting T.H. Taylor pled and agreed to testify against Griffin, who went to trial and was found guilty. He filed a pro se appeal arguing that (1) the State failed to turn over Brady evidence (2) he received ineffective assistance of counsel, and (3) the circuit court erroneously admitted two letters, which were not authenticated. The court of appeals affirmed the conviction but Judge Dugan filed a concurrence on the third issue.
SCOW further explains the test for granting a stay pending appeal
The main issue in Waity v. Lemahieu, 2022 WI 6 (January 27, 2022), involves the legislature’s power to hire lawyers to deal with redistricting issues, but along the way a majority of the court addresses a matter of interest to all appellate and postconviction lawyers: the proper application of the standard for a circuit court to apply in deciding whether to issue a stay pending appeal. While seeking a stay in a criminal case is often a futile endeavor for the defense, what the court says here might be useful next time you consider doing so.
No error in admitting foster parent’s testimony at TPR grounds trial
Dunn County Human Services v. N.R., 2021AP129 & 2021AP1830, District 3, 1/28/22 (one-judge decision; in eligible for publication); case activity
The circuit court properly exercised its discretion in allowing the foster parent of N.R.’s children to testify at the grounds trial in N.R.’s TPR proceeding.
SCOW will address confrontation, harmlessness, and corroboration rule
State v. Oscar C. Thomas, 2020AP32, petition for review of a published decision granted 1/11/2022; affirmed 2/21/23; case activity (including briefs)
Issues presented (from the petition):
Whether the Court of Appeals applied the wrong standard in determining that admission of DNA evidence in violation of [Thomas’s] right of Confrontation was harmless?
Whether the Court of Appeals erred in determining that [Thomas’s] confession to a sexual assault was corroborated by a significant fact?
Challenge to medication order mooted by subsequently issued medication order
Rock County v. P.P., 2021AP678, District 4, 12/16/21 (one-judge decision; ineligible for publication); case activity
P.P. challenges the sufficiency of the evidence elicited in support of the involuntary medication order issued in April 2020, along with the original commitment order. Both orders were set to expire in October 2020, so in September 2020 the County petitioned to extend them for 12 months. P.P. stipulated to the extension. (¶¶2-4). Because of the September 2020 extension of the medication order, P.P.’s appeal of the original order is moot.
CoA rejects proposed guardianship and NTIJ challenge to TPR order
State v. A.P., 2021AP1146-47, 12/7/21, District 1 (1-judge opinion, ineligible for publication); case activity
A.P. appealed orders terminating his parental rights to his two children. The court of appeals rejected his claim that the circuit court erroneously exercised its discretion when it refused to make his mother the guardian of the children and his new trial in the interests of justice claim.