On Point: K. Standards of Review

State v. Devon Maurice Bowser, 2018AP313, 1/8/19, District 3 (not recommended for publication); case activity (including briefs)

Bowser was charged with several offenses in two cases; the two cases involved alleged drug sales on two different dates (one in 2015, one in 2016) to two different CIs. He and the state struck a deal in which he pleaded to some counts in each file with the rest dismissed. But before he could be sentenced, Bowser learned that the CI from the 2015 sale was recanting his claims that Bowser had sold him the drugs. Bowser moved to withdraw all his pleas in both cases.

State v. Shawn T. Wiskerchen, 2019 WI 1, 1/4/19, affirming an unpublished court of appeals decision, 2016AP1541; case activity (including briefs)

This could have turned out worse. The court of appeals, as we noted in our post on that court’s decision, held that Wiskerchen, convicted of a single burglary of a home, could be made to pay restitution for his alleged prior burglaries of the same home, even though those alleged burglaries were neither charged nor read in, as the statute seems to require. Four justices now conclude, through a creative reading of the record, that the circuit court found Wiskerchen took everything in the single burglary. So, precedentially, this case amounts to little or nothing, and for now at least, the court avoids embracing the court of appeals’ view that results can precede causes.

Fond du Lac County DSS & W.A.B. v. W.G.B. & K.L.B., 2017AP2468, 12/5/18, District 2 (one-judge decison; ineligible for publication); case activity

W.A.B., a juvenile, was alleged to be delinquent for threatening her mother with a knife. She was found not competent to proceed, though, and so DSS filed a JIPS petition. See Wis. Stat. § 938.13(14). That petition resulted in an order placing W.A.B. outside the home, to have contact with her sister only when the family’s counselor thought it appropriate.

SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78.  If you are challenging the constitutionality of  a Wisconsin statute, you may want to take a careful look at this decision.  The justices appear to have split over the proper standard for judging the constitutionality of a statute.

State v. Scott H. Wenger, 2017AP2305, 6/14/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wenger got arrested for disorderly conduct and resisting at Art in the Park in Stevens point. The circuit court dismissed the DC but found him guilty, after a bench trial, of resisting. He claims insufficient evidence as to all three elements of resisting an officer:

State v. James E. Gray, 2017AP452-CR, 6/6/18, District 2, (not recommended for publication); case activity (including briefs)

The court of appeals here affirms several trial court evidentiary decisions and holds that the State presented sufficient evidence to support convictions for 5 counts  of identity theft.  As you might guess, the decision hinges on the harmless error doctrine and facts specific to this case.

State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity

Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.

State v. William H. Craig, 2017AP651-CR, 4/17/18, District 3 (not recommended for publication); case activity (including briefs)

Criminal defendants have a broad right to pretrial discovery under §971.23(1), but that right is tempered by  §971.23(6), which authorizes the circuit court to enter protective orders for good cause. The court is not required to hold an evidentiary hearing before granting a motion for protective order. But if it denies a hearing, it must explain its rationale. The circuit court did not do that here, so the court of appeals reversed and remanded this case for further proceedings.

State v. David McAlister, Sr., 2018 WI 34, 4/17/18, affirming an unpublished court of appeals order, 2014AP2561; case activity

A jury convicted McAlister in 2007 of three counts having to do with an attempted and a completed armed robbery. The state’s case was founded on the testimony of two men (Jefferson and Waters) who had committed the crimes: they said McAlister was also involved. At trial, McAlister’s counsel impeached them by showing they had received consideration from the state in exchange for their testimony. But he couldn’t provide any direct evidence they had lied. Now he can, but the SCOW majority says it’s not good enough, even to get a hearing on his motion.

Dane County DHS v. C.B., 2018AP38 & 39, 4/9/2018, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Yes, that headline is correct: The circuit court did not terminate C.B.’s parental rights, and the court of appeals rejects the County’s challenges to the circuit court’s decision (and admonishes the County’s lawyer for an improper argument).