On Point: 1. Appeals

State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.

Marquette County v. T.F.W., 2017AP5, 6/8/17, District 4 (1-judge opinion, ineligible for publication); case activity

T.F.W. objected to the having his treating psychiatrist testify by telephone at his Chapter 51 extension hearing. He cited both §885.60 and “due process.” He did not specifically cite §807.13(2)(c), which outlines 8 factors a trial court should consider before allowing telephonic testimony. The court of appeals held that T.F.W. forfeited his §807.13(2)(c) argument perhaps without realizing (or perhaps not acknowledging) that the statute was enacted to protect due process rights.

State v. Bruce C. Brenizer, 2015AP2181, District 3, 6/6/17 (not recommended for publication); case activity (including select briefs)

The Department of Health Services didn’t have authority to transfer Brenizer to the Department of Corrections because the circuit court’s commitment order unambiguously states that Brenizer is committed to DHS custody for life unless his custody is terminated under § 971.17(5) (1991-92).

State v. Donald G. Verkuylen, 2016AP2364, 5/18/2017, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Verkuylen pled to refusing a blood draw contrary to the motorboat implied consent law, Wis. Stat. § 30.684. He raises several arguments about the statutorily required warnings, but the court of appeals finds them all either meritless or forfeited.

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order has a claim for ineffective assistance of trial counsel where his lawyer fails to object to, prevent the admission of, or request a curative instruction to address, evidence of his prisoner status during his jury trial?

Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order is entitled to a new trial in the interests of justice where the jury repeatedly sees and hears evidence of his prisoner status?

Maya Elaine Smith v. Jeff Anderson, 2017 WI 43, dismissing a petition for review of 366 Wis. 2d 808, 874 N.W.2d 347 (Ct. App. 2016)(unpublished); case activity (including briefs)

Recently, SCOW has marched ahead and decided issues that the parties did not properly preserve or brief–to the detriment of indigent defendants.  Recall what happened a few weeks ago in State v. Denny and earlier in State v. Sulla and State v. Smith. But in this case, after briefing and argument by the parties and an amicus curiae, a 3-justice majority (Ziegler and RG Bradley didn’t participate) showed remarkable restraint. It issued a per curiam opinion dismissing a petition for review as improvidently granted because nobody preserved an issue the court of appeals declined to decide. The upshot? It appears that SCOW has rescued West Bend Mutual Insurance Company from an appellate blunder and possible defeat. The blunder presents a teachable moment for appellate lawyers trying to preserve issues for supreme court review.

State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)

Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.

State v. John A. Augoki, 2016AP231-CR, 4/25/17, District 1 (not recommended for publication); case activity (including briefs)

Augoki raises two claims on appeal of his jury-trial conviction of three sexual assaults: that the jury heard other-acts evidence it should hot have heard (raised here as plain error) and that the court unconstitutionally limited his cross-examination of a state expert. The court of appeals rejects both in a fact-intensive opinion.

State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity

The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!