On Point blog, page 35 of 118
CHIPS proceedings not precluded by prior JIPS proceedings
Fond du Lac County DSS & W.A.B. v. W.G.B. & K.L.B., 2017AP2468, 12/5/18, District 2 (one-judge decison; ineligible for publication); case activity
W.A.B., a juvenile, was alleged to be delinquent for threatening her mother with a knife. She was found not competent to proceed, though, and so DSS filed a JIPS petition. See Wis. Stat. § 938.13(14). That petition resulted in an order placing W.A.B. outside the home, to have contact with her sister only when the family’s counselor thought it appropriate.
Court of appeals again asks SCOW to decide whether “implied consent” is really consent
State v. Philip J. Hawley, 2015AP1113, District 4, 11/21/18; case activity (including briefs)
Our supreme court has, three times, set out to decide whether the implied-consent statute supplies “consent” in a Fourth Amendment sense, such that it constitutes an exception to the warrant requirement. Three times, it has failed to reach a binding majority on the question–or has it? The court of appeals, in this certification, suggests perhaps the supreme court has the answer already, depending how you count the votes.
Appellate lawyers don’t need transcripts to identify issues for appeal, says the court of appeals
State v. Robert James Pope, Jr., 2017AP1720-CR, 11/13/18, District 1 (not recommended for publication), petition for review granted 4/9/19, affirmed, 2019 WI 106, ; case activity (including briefs)
Here’s good one for SCOW. A jury convicted Pope of 2 counts of 1st degree homicide in 1996. His lawyer forgot to file a notice of intent. Twenty years later, the State stipulated to reinstatement of Pope’s direct appeal. He tried to order transcripts but couldn’t because the court reporters had destroyed their notes. The circuit court ordered a new trial, but the court of appeals reversed because his new lawyer could not predict what “colorable claims” lurked in transcripts that weren’t prepared and could never be reconstructed.
Failure to raise issue in circuit court forfeits it on appeal
Monroe County v. B.L., 2018AP694, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity
B.L. argues on appeal that the doctor who initiated his emergency detention could not also be one of the examiners appointed under Wis. Stat. § 51.20(9)(a)1.. The court does not address the argument, because B.L. raises it for the first time on appeal.
Failure to object during sentencing hearing to court’s consideration of information means the issue is forfeited
State v. Carrie E. Counihan, 2017AP2265-CR, District 3, 11/6/2017 (one-judge decision; ineligible for publication), petition for review granted 5/14/19, modified and affirmed, 2020 WI 12, ; case activity (including briefs)
At Counihan’s sentencing, the circuit court announced it had researched the outcomes in other cases with similar charges and then used that information in sentencing Counihan to jail time. Counihan moved for resentencing, arguing the circuit court violated due process because she didn’t have notice it had collected information about other cases or the opportunity to address the information at sentencing. The court of appeals holds the claim is forfeited because trial counsel didn’t object at the sentencing hearing. It also holds trial counsel’s failure to object wasn’t prejudicial.
Driver’s failure to yield on entering roundabout justified traffic stop
State v. Nicholas C. Wegner, 2017AP2236-CR, District 2, 10/23/18 (not recommended for publication); case activity (including briefs)
A police officer testified he was proceeding through a traffic roundabout when Wegner, ignoring the yield signs posted for vehicles entering the roundabout, entered directly in front of the officer and caused the officer to have to brake to avoid hitting Wegner. (¶4). This conduct justified the officer’s stop of Wegner.
Counsel not ineffective for failing to object to vouching at trial and impermissible factors at sentencing
State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)
The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.
On the unhappy snares and traps awaiting unwary, unschooled, and unprosperous appellants
Lafayette County v. Ian D. Humphrey, 2016AP966, District 4, 8/16/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)
Humphrey wants appellate review of the forfeiture judgment entered against him for operating a vehicle while suspended. He doesn’t get it.
State’s failure to file a brief leads to (partial) defense win
State v. Aman D. Singh, 2017AP1609, 7/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
We last saw Singh attempting, and failing, to get his long-ago second-offense OWI dismissed by a writ of coram nobis. After that, he went back to court arguing that the count should be dismissed because of Wis. Stat. § 345.52 (which says that a judgment in a traffic ordinance action bars state proceedings for the same violation) and Wis. Stat. § 973.17 (which says excessive sentences are void).
If you are challenging the constitutionality of a statute, read this decision
SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78. If you are challenging the constitutionality of a Wisconsin statute, you may want to take a careful look at this decision. The justices appear to have split over the proper standard for judging the constitutionality of a statute.