On Point: 1. Appeals

State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)

Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.

State v. Daniel L. Schmidt, 2016 WI App 45; case activity (including briefs)

The court of appeals rejects three challenges to Schmidt’s jury-trial conviction of two homicides.

State v. Jeffrey S. Decker, 2015AP1997-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity

Jeffrey Decker had been banned from the UW-Oshkosh, and was arrested when he arrived at a grand opening event. The arrest was not without incident and he was charged with obstructing an officer and convicted after a jury trial.

Question presented:

What are the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605 (2010)?

State v. J.L.M., 2015AP1695, 4/19/16, District 1 (1-judge opinion, ineligible for publication); case activity

The State charged J.L.M. with one count of robbery with use of force, as a party to a crime, due to his alleged involvement with a group of youths who stole M.H.’s bike and struck him several times in the process. J.L.M. lost at trial and challenged the sufficiency of the evidence to support his conviction. 

State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)

A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.

State v. Michael A. Durham, 2015AP1978-CR, 4/12/2016, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police were dispatched in response to a 6:30 p.m. phone call from a neighbor about unintelligible yelling and “banging” that shook the walls of Durham’s residence. (¶2). After knocking and ringing the doorbell and receiving no response, police simply entered the house, guns drawn, and proceeded toward the stairs, where they encountered Durham. (¶¶3-5). The officers ordered Durham to show his hands, he didn’t, and they tasered him. (¶6). He was charged with resisting an officer, unsuccessfully moved to suppress evidence obtained via the warrantless search of his home, and was convicted at trial. (¶1). The court of appeals here reverses the conviction because the suppression motion should have been granted.

State v. Luis Calderon-Encarnacion, Jr., 2014AP2252-CR, 04/12/2016 (not recommended for publication); case activity (including briefs)

Calderon was found guilty at trial of shooting up the house of his child’s mother. The evidence against him included the fact that he was pulled over 20 minutes after the shooting in a vehicle matching an eyewitness description of the shooter’s, with a silver-and-black revolver containing five spent casings concealed in the fuse panel.

State v. Jimmie Lee Smith, 2016 WI 23, 4/7/16, reversing a published court of appeals decision, majority opinion by Roggensack, concurrence by Ziegler, dissent by Abrahamson (joined by A.W. Bradley); case activity (including briefs)

You can’t accuse the majority of mere error correction in this decision. Although the State never asked SCOW to rewrite the “clearly erroneous” standard of review and nobody briefed or orally argued the issue (see Ziegler’s concurrence and Abrahamson’s dissent), the majority seized the opportunity to make a tough standard even tougher. Unless SCOTUS steps in, it’s going to be virtually impossible to  challenge circuit court competency findings as well as other circuit court decisions governed by the “clearly erroneous” standard of review.

State v. Alina N. Caminiti, 2015AP122-CR, and State v. Matthew B. Caminiti, 2015AP123-CR, 4/6/2016, District 4 (not recommended for publication); case activity (including briefs).

The Caminitis were members of a church in Black Earth whose leader (Matthew’s father) advocated “rod discipline”–the beating of infants and young children on the bare buttocks with wooden spoons or dowels, often resulting in bruising. The father’s convictions for conspiracy to commit child abuse were affirmed by the court of appeals in 2014; the Caminitis now appeal their convictions at trial for physical abuse of their two children on substantive due process and religious freedom grounds.