On Point: 1. Appeals

State v. Nathaniel R. Lecker, 2020 WI App 65; case activity (including briefs)

The application of a statute to undisputed facts is a question of law. This is an incontrovertible maxim of appellate review. “Question of law” sounds so august and erudite and specialized, doesn’t it? A question of law is a question into which an astute lawyer–or judge–would have special insight; he or she could be trusted to come to the right–or at least a particularly sound–answer to such a question. But sometimes statutes are written in very ordinary terms with no particular resonance, and no special definition, in the legal world. And sometimes these ordinary terms are also rather elastic–or relative. In those instances, can the answer to a “question of law” be something other than a standardless, “know it when I see it” exercise of arbitrary will?

State v. Morgan E. Geyser, 2020 WI App 58; case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

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.

Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity

Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement.  Hopefully, R.J. will move for reconsideration or petition for review.

State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.

State v. Joseph K. Edwards, 2019AP2138-CR, District 1, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Edwards was charged with disorderly conduct with use of a dangerous weapon for “creepy, stalker-like behavior.” (¶6). The court of appeals rejects his complaint that the jury wasn’t instructed on the definition of “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.

State v. Yancy Kevin Dieter, 2020 WI App 49; case activity (including briefs)

Dieter called 911 at about 6 in the morning and reported that he’d crashed his car after drinking at a bar. The crash happened about four hours before Dieter made the call; he was badly injured and the car’s other occupant was killed.

State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.

County of Milwaukee v. Christann Spannraft, 2018AP1553 & 1554, 6/23/20, District 1 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

This is a pro se appeal of an OWI-1st conviction. Spannraft raises three claims, all of which are rejected.

State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity

Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.