On Point: 8. Discretionary decision

State v. Samantha J., 2014AP988, 2014AP989, 2014AP1017, District 1, 9/17/14 (1-judge opinion, ineligible for publication); case activity

This case is noteworthy in 2 respects.  First, the court of appeals upheld a default judgment as to grounds for terminating a mother’s parental rights–always a significant step, given the stakes.  And, second, the court of appeals complimented a brief–specifically, the brief filed by the GAL, Linnea Matthiesen.

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court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity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

State v. Joseph J. Wilcenski, 2013 WI App 21; case activity

Conditions of pre-trial release – alcohol treatment and testing; constitutionality

Waukesha County has adopted a policy that all persons arrested for OWI as a second or subsequent offense who live in one of ten counties be released from custody on the condition that they participate in a “pretrial intoxicated driver treatment program.” Wilcenski argues that this condition violates the constitutional rights to medical privacy and freedom from unreasonable searches.

State v. Leon A. Wedde, 2011AP130-CR, District 2, 1/11/12

court of appeals decision (1-judge, not for publication); pro se; case activity

The trial court dismissed with prejudice the pending charge when the prosecutor was unable to proceed on the scheduled date. The State argues that dismissal should have been without prejudice, and the court of appeals agrees that the trial court erroneously exercised discretion on this point,

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

¶9 n. 2:

McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.”  (Most capitalization omitted.)  The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is:  “For all of the reasons set forth in the State’s excellent brief,

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

Sentencing Review – New Factor – Assistance to Law Enforcement 

McDermott, convicted in 1991 of first-degree intentional homicide, ptac with a parole eligibility date of 35 years, seeks new-factor-based modification of his PED on the ground “he helped law enforcement by participating in prison programs designed to dissuade youth from crime.”

Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86

Issue/Holding:

¶14      By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court. 

Racine Harley-Davidson, Inc. v. State of Wisconsin Division of Hearings and Appeals, 2006 WI 86

Issue/Holding:

¶14      By granting deference to agency interpretations, the court has not abdicated, and should not abdicate, its authority and responsibility to interpret statutes and decide questions of law. Some cases, however, mistakenly fail to state, before launching into a discussion of the levels of deference, that the interpretation and application of a statute is a question of law to be determined by a court. 

State v. Cesar G., 2004 WI 61, reversing unpublished opinion
For Cesar G.: Eileen Hirsch, SPD, Madison Appellate
Issue/Holding:

¶46. In contrast to the court of appeals, we view the circuit court’s statement that it was not convinced it had the statutory authority to stay the sex registration requirement as persuasive that it made its decision based on an incorrect view of the law.

Calumet County DHS v. Randall H., 2002 WI 126, on certification

Issue/Holding: Where “the procedural history” and “the underlying facts” are not in dispute, “a determination of whether the facts meet the applicable legal standard” is reviewed de novo.