On Point blog, page 102 of 485
Client’s motion for plea withdrawal defeated by counsel’s testimony that he explained charges and elements
State v. Orlando Davis, 2018AP2326-CR, 10/1/19, District 1, (1-judge opinion, ineligible for publication) case activity (including briefs)
Davis filed a Bangert motion alleging that (1) the trial court failed to advise him of the elements of the offense to which he pled guilty, and (2) he did not understand those elements. At the postconviction hearing, Davis and his trial lawyer testified about Davis’s understanding of the elements. The postconviction court found counsel more credible, and the court of appeals affirms.
COA declares Ch. 51 recommitment standard constitutional; makes county’s 21-day filing deadline optional
Waupaca v. K.E.K., 2018Ap1887, District 4, 9/26/19 (not recommended for publication), petition for review granted 7/24/20, affirmed, 2021 WI 9; case activity
This opinion infuses uncertainty, if not confusion, into the law governing circuit court competency to decide a Chapter 51 recommitment case and the substantive legal standard that courts are to apply at the recommitment stage.
September 2019 publication list
On September 25, 2019, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Daniel A. Griffin, 2019 WI App 49 (circuit court properly applied Denny and Sullivan tests to exclude evidence regarding third-party perpetrator)
State v. Malcolm J. Sanders, 2019 WI App 52 (prosecutor didn’t violate Batson by striking juror who had bad experience with police)
COA finds no error in ordering parents to pay guardian ad litem costs in CHIPS case
Vernon County DHS v. K.F. and M.F., 2018AP863, 9/26/2019, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The county filed a CHIPS petition regarding K.F. and M.F.’s four children. The court appointed a guardian ad litem to represent the kids and ordered the county to pay the GAL’s fees, but additionally ordered that the parents reimburse the county.
Good faith saves search; no decision on whether “looks like child porn” is probable cause
State v. Garrett German, 2018AP78, 9/24/19, District 3 (not recommended for publication); case activity (including briefs)
Facebook alerted law enforcement that German’s account had uploaded images that “appeared to depict child pornography.” Eventually, an who had looked at the images submitted a warrant application averring that each one did “appear to be an image of child pornography.” Police executing the warrant did, in fact, find child pornography. Was the bare allegation that the images were child pornography (rather than an attachment with the actual images or at least a description of what they showed) good enough to supply probable cause to the warrant-issuing magistrate?
Defense win! Police lacked probable cause for OWI arrest due to unreliable FST results
State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
Don’t pinch yourself! You’re not dreaming. An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.
COA affirms trial court’s termination of parental rights based on the of the best interests of the child
State v. K.K.E., 2019AP115-117; 9/24/19, District 1 (1-judge opinion, ineligible for publication); case activity
The trial court terminated K.K.E.’s parental rights based on the best interests of her three daughters. On appeal, K.K.E. conceded that the trial court addressed the 6 “best interests of the child” factors required by §48.426(3). But she challenged the weight the trial court assigned to each factor. In affirming, the court of appeals explains how a trial court’s weighing of these factors is virtually unassailable on appeal.
Defense win! COA says no community caretaker search where no good reason to think anybody was hurt
State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.
COA reverses trial court’s hearsay ruling but affirms on harmless error
State v. Tyler J. Yost, 2018AP2251-CR, 9/18/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
Loose lips sink ships. They can also land you in jail for another year. That’s what happened to Yost when he and other inmates started bad mouthing their probation agent while chilling in the common area of the Waukesha County Jail. Yost allegedly called his agent a “bitch” and said that when he got out he was going to “crimp her brake lines,” and he didn’t care if her kids or family were in the car.
COA grants reconsideration, reverses in part due to illegality of sentence
State v. Larry C. Lokken, 2017AP2087-CR, 9/17/19, District 3 (unpublished), case activity (including briefs)
Lokken, a long-time Eau Claire County Treasurer, pled “no contest” to 3 counts of misconduct in office and 5 counts of theft in a business setting for stealing $625,758.22 from taxpayers. The circuit court ordered $681,846.92 in restitution and imposed an unusual condition of probation on one of the counts: if Lokken failed to pay restitution in 4 1/2 years, the 10-year probation period on Count 2 would be revoked.