On Point: 1. Appeals

State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity

Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).

State v. Charles R. Kucharski, 2013AP557-CR, District 1, 5/6/14, petition for review granted 9/24/14, reversed, 2015 WI 64; case activity

This is a nice defense win, and the majority opinion makes sense.  Kucharski shot and killed his parents and pled not guilty by reason of mental disease or defect. The only issue at his court trial was whether he lacked the capacity to appreciate the wrongfulness of his conduct and comply with the law. The uncontested expert opinions answered “yes.” So the majority granted a new trial.  The dissent took issue with the majority’s application of § 752.35, the discretionary reversal standard.

Fond du Lac County v. Douglas L. Bethke, 2013AP2297, District 2, 4/30/14 (1-judge; ineligible for publication); case activity

The circuit court did not erroneously exercise its discretion when it excluded evidence of particular crime lab errors that happened years before Bethke’s blood sample was analyzed.

State v. John Francis Ferguson, 2014 WI App 48; case activity

The circuit court did not erroneously exercise its discretion in denying Ferguson’s plea withdrawal motion, which was based on recantations by two witnesses who had previously said Ferguson fatally shot a man. The circuit judge applied the proper standard under State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), when it found the recantations were incredible as a matter of law and uncorroborated by other newly-discovered evidence, and its findings are not clearly erroneous.

State v. Daniel K. Rogers, 2012AP186-CR, District 4, 4/17/14; (1-judge opinion, ineligible for publication); case activity

The defendant, having been charged with sexual assault and released on bond, allegedly choked his victim to make her to lie on his behalf at trial. The circuit court admitted this as § 904.04(2) “other acts” evidence at the sexual assault trial, and the COA affirmed because the evidence showed consciousness of guilt.

State v. John M. Navigato, 2012AP2108-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

State v. Teddy W. Bieker, 2012AP2693-CR, District 2, 4/9/14; court of appeals decision (not recommended for publication); case activity

The circuit court, relying on the district attorney’s assertion of the so-called “interlocking confessions” doctrine, denied Navigato’s and Bieker’s motions to sever their trials on homicide,

State v. Venceremos Crump, 2013AP2163-CR, District 1, 3/18/14; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court articulated its reasons for the sentence imposed on Crump as required by State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197, in light of the court’s comments in its order denying Crump’s postconviction motion, where it explicitly addressed the three primary sentencing factors and applied those factors to the facts of Crump’s case.

State v. Daniel M. Hirsch, 2014 WI App 39; case activity

The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).

Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d),

State v. Francisco Luis Canales, 2013AP1435-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

Though the state violated its discovery obligation by failing to disclose multiple computer-aided dispatch (CAD) reports describing 9-1-1 calls regarding the incident, the circuit court did not erroneously exercise its discretion in denying Canales’s motion for mistrial after the discovery violation came to light.

A mistrial is appropriate only when there is a “manifest necessity,” for “the law prefers less drastic alternatives,

State v. Daniel T. Storm, 2013AP2212, District 2, 3/5/13; court of appeals decision (1-judge; ineligible for publication); case activity

The court of appeals rejects Storm’s claim that the circuit court imposed a fine and costs without determining his ability to pay because Storm did not provide a complete record on appeal:

¶4        It would have been nice had Storm provided us with the transcripts of those hearings [to which the circuit court’s written decision referred] so that we could see for ourselves what happened which resulted in the stipulation.