On Point: 46. WI Court of Appeals

On June 26, 2019, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Dominique M. Anwar, 2018AP2222-CR, 6/25/19, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejects Anwar’s arguments that she’s entitled to resentencing because the State offered certain information at her sentencing hearing without first disclosing the information and giving her notice it would use the information.

State v. Jessy A. Rivard, 2018AP1070-CR, District 3, 6/18/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Rivard’s challenge to the use of a 2006 OWI conviction fails because the record supports the circuit court’s conclusion that Rivard’s waiver of counsel in that case was valid.

State v. Dustin M. Yanda, 2018AP412-CR, District 3, 6/18/19 (not recommended for publication); case activity (including briefs)

In State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828, the supreme court held that a defendant seeking a “new factor” sentence modification doesn’t need to prove that the new factor “frustrates the purpose” of the original sentence. However, Harbor doesn’t preclude the sentencing court from considering whether the purpose of the sentence is frustrated in deciding whether to modify a sentence once the court has concluded the defendant has proven a new factor.

State v. T.A.D.S., 2018AP2173, District 1, 6/18/19 (one-judge decision; ineligible for publication); case activity

T.A.D.S. pleaded no-contest to the abandonment ground alleged in the petition filed to terminate his parental rights to his daughter, T.S. He argues his plea was invalid because the circuit court’s plea colloquy didn’t correctly explain the statutory standard for the disposition hearing. The court of appeals disagrees.

State v. John S. Finley, 2018AP258-CR, District 2, 6/12/19 (not recommended for publication); case activity (including briefs)

Here’s a succinct summary of this decision: “The Majority supports the government’s  ‘interview,’ which utilized lies, threats, and fabrication of evidence to wrestle a statement from a thirty-six-year-old man, who has the mind of a twelve year old and the social skills of a first grader.” (¶24 (Reilly, P.J., dissenting) (footnote omitted)).

James P. Moran v. Wisconsin Department of Justice, 2019 WI App 38; case activity (including briefs)

James Moran was convicted of a felony in Virginia. That state has a procedure by which a person can petition to have his or her right to own a gun restored, and Moran’s petition was successful. So he can buy a gun there. Can he buy one here?

Juneau County D.H.S. v. S.G.M., 2019AP553-556, 6/6/19, District 4 (1-judge opinion; ineligible for publication); case activity

This appeal presents two issues of TPR law: (1) Whether a county must file an affidavit in support of its summary judgment motion; and (2) Whether Juneau County satisfied the requirement of §48.415(4)(a), which governs the “continuing denial of visitation.”

Bill Lueders v. Scott Krug, 2019 WI App 36; case activity (including briefs)

Here’s a non-criminal case that may nevertheless prove useful to your criminal practice, if you seek information via the open-records law. Lueders (a reporter) sent an open records request to Krug (a state legislator)’s office, asking for emails referring to a particular set of subjects. Krug’s office responded by supplying paper printouts of the requested emails; Lueders replied that he specifically wanted an electronic version of the emails, which Krug’s office refused to give him. The court of appeals now upholds the circuit court’s ruling that Lueders was entitled to the electronic data.

State v. Courtney C. Brown, 2019 WI App 34, petition for review granted, 10/15/19, affirmed, 2020 WI 63; case activity (including links to briefs)

This is a published, split decision with a vigorous, showstopping “concurrence” by Reilly. Neubauer and Hagedorn hold that after writing Brown a ticket for a seatbelt violation, an officer’s request that he exit his car and consent to a search (where he was looking for drugs and weapons) was part of the traffic stop’s original mission.  Reilly “concurs” only because he can’t defy SCOW’s recent opinions in State v. Floyd and State v. Wright, which he regards as intellectually dishonest and akin to the Dred Scott decision.