On Point blog, page 119 of 490
Defense win! Circuit court erroneously denied State’s motion to dismiss and then to amend charge
State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)
DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion. See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).
Defendant must testify to prove that, but for counsel’s advice to plead, he would have gone to trial
State v. Jeninga, 2019 WI App 14; case activity (including briefs)
Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.
Partial summary judgment, best interests determination upheld
D.R. v. B.D., 2018AP1731 & 2018AP1732, District 3, 2/20/19 (one-judge decision; ineligible for publication); case activity
B.D.’s challenges to the order terminating his parental rights come up short.
Victim’s failure to wear seatbelt doesn’t diminish OWI defendant’s culpability
State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)
Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163.
To prove misdemeanor bail jumping, State must show defendant was arrested, not charged, with a misdemeanor
State v. Melodie Cheree Taylor, 2018AP1953-CR, 2/14/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
In a misdemeanor prosecution under §946.49(1)(a) is the State required to prove that, before jumping bail, the defendant had been charged with a misdemeanor? Or may the State simply prove that the defendant had been released from custody under 969 after an arrest for a misdemeanor?
Court of appeals affirms extension of stop and OWI 4th for impairment from prescription medication
State v. James R. Mueller, 2018AP44-CR, 2/12/19, District 3 (1-judge opinion, eligible for publication); case activity (including briefs).
Mueller conceded that an officer had reasonable suspicion to stop him. He argued that the officer extended the stop based on a “hunch” and that his FSTs results did not provide probable cause for arrest or sufficient evidence to convict him because they test for impairment by alcohol, not prescription meds.
Court of appeals affirms admission of other acts evidence to prove child sexual assault
State v. Marco A. Lopez, Sr., 2018AP159-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs).
The State charged Lopez with child sexual assault of two victims and moved to admit the of testimony of two additional relatives who said that they were also assaulted by Lopez for years when they were the same ages as the victims. Lopez conceded the first two elements of the “other acts” evidence test. State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), §904.04(2) and §904.03. He argued that the trial court incorrectly weighed the probative value of the evidence against the danger of unfair prejudice.
Dismissal after suppression ruling was premature
County of Green v. Joey Jay Barnes, 2018AP1382, District 4, 2/7/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court dismissed charges against Barnes after suppressing some of the evidence against him. Not so fast, says the court of appeals.
Involuntary intoxication defense to OWI rejected
Village of Menomonee Falls v. Kristina L. Smithers, 2018AP993, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court properly rejected Smithers’s invocation of an involuntary intoxication defense in her prosecution for operating while under the influence of the prescription medication she was taken as prescribed.
No record, no record citations, no legal argument, no chance on appeal
State v. Tracy E. McCarthy, 2018AP484, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
McCarthy’s pro se appeal in his disorderly conduct case fails on multiple grounds. His brief doesn’t cite to the record and the record doesn’t include any transcripts. He doesn’t develop any legal arguments in support of his claims about the alleged errors at trial. Moreover, there wasn’t a trial: he entered a plea to an ordinance violation.