On Point: 1. Appeals

State v. Lamont L. Travis, 2012 WI App 46 (recommended for publication), petition for review granted, 9/18/12; case activity

For unsuccessfully trying to put his hand down his 10-year-old niece’s pants, Travis was charged with, and pleaded guilty to, attempted first-degree sexual assault of a child under age 12, §§ 939.32, 948.02(1)(d). However, that particular form of assault requires use or threat of use of force and violence,

State v. Dennis R. Thiel, 2012 WI App 48 (recommended for publication); for Thiel: Jeffrey W. Jensen; case activity

SVP (Ch. 980) Supervised Release – Challenge to Conditions: Ripeness 

Thiel’s challenge to 2 conditions of his supervised release from a ch. 980 commitment are ripe for review (the conditions relate to possible detention in a correctional facility and administration of polygraphs):

¶7        The State argues that Thiel’s claims are not ripe for review because no circumstances have arisen where Rules 13 and 16 were sought to be enforced.  

State v. Jeffery G. Sutton, 2012 WI 23, reversing summary order of court of appeals; for Sutton: Kaitlin A. Lamb, Colleen Ball, SPD, Milwaukee Appellate;  for amicus, WACDL: Robert R. Henak; case activity

Although presented with an unpreserved but seemingly meritorious issue (defective jury-waiver colloquy) on § 809.32 no-merit review, the court of appeals nonetheless accepted counsel’s no-merit report, thereby affirming Sutton’s conviction, and instructed him to seek relief pursuant to § 974.06 even though he was no longer in custody and the remedy was thus illusory.

State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity

¶32  We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel.  Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,

State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12

court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity

Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.

¶8        Wisconsin law recognizes that guns and drug dealers go together.  See State v. Guy, 172 Wis. 2d 86,

Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12

court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity

Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.

State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity

Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under §  939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded,

State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity

¶4   We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation.  Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12

court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity

Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.