On Point: 1. Appeals

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.

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.

State v. Nicholas C. Wegner, 2017AP2236-CR, District 2, 10/23/18 (not recommended for publication); case activity (including briefs)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.

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)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.

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 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).

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.

State v. Kyle Lee Monahan, 2018 WI 80, affirming an unpublished court of appeals decision, 2014AP2187, case activity (including briefs)

You wouldn’t know it from the opinions, but the parties here briefed (and WACDL filed an amicus brief on) a question of harmless error doctrine. When trying to decide whether a trial error is harmless, the court is to ask whether “the jury would have arrived at the same verdict had the error not occurred.” Monahan contended that since a jury, as finder of fact, is free to draw any reasonable inference from the evidence, the reviewing court must view the trial evidence in the light most favorable to the defendant–that is, not declare an error harmless unless there is no reasonable set of inferences that would lead the jury to acquit. He argued that the court of appeals had not done this–that it had instead taken a conviction-friendly view of the evidence, effectively substituting its own views for that of the hypothetical “reasonable jury.” In so doing, he said, the court of appeals had effectively turned the (ostensibly stringent) harmless error test to the (extremely forgiving) standard for sufficiency of the evidence.

State v. Delano Maurice Wade, 2017AP1021, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Wade appeals his jury-trial conviction of sexual assault and false imprisonment. He argues that certain of his accuser’s statements, related by police officers on the stand, were hearsay, and that the court erred in addressing a jury question when he was absent.

Gilberto Garza, Jr. v. Idaho, USSC No. 17-1026, certiorari granted 6/18/18

Question presented:

Does the “presumption of prejudice” recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?