On Point blog, page 119 of 485
Running away for six days is one violation of juvenile disposition order, not six
State v. D.L.L., 2018AP1064-FT, District 2, 11/21/18 (one-judge decision; ineligible for publication); case activity
D.L.L., who was under a delinquency dispositional order placing him at his mother’s home, ran away for six days. The state moved for sanctions, alleging six violations of the dispositional order, one for each day he was gone. The juvenile court agreed that each day could be a separate violation. The juvenile court was wrong.
COA: Officers had consent to enter home
State v. Kathryn M. Cooper, 2018AP1154, 11/21/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Cooper’s vehicle was involved in an accident and was found, damaged, in her driveway. An officer saw a light on near the back door of her home and went around back and knocked. Cooper waved him in. The officer told her he was investigating an accident.
Defendant not prejudiced by counsel’s failure to convey earlier plea offer
State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)
This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept subsequent, potentially less favorable offer.
State’s amendment of charges at the close of evidence affirmed
State v. Brian M. Smits, 2017AP2141-Cr, District 2, 11/20/18, (1-judge opinion, ineligible for publication); case activity (including briefs)
The State charged Smits with obstruction, OWI 2nd, and operating with a PAC 2nd. The case was tried to a jury, After both sides rested, the State filed an amended complaint containing a 2nd obstruction charge. The court of appeals affirmed because Smits wasn’t prejudiced by the amendment.
Appellate lawyers don’t need transcripts to identify issues for appeal, says the court of appeals
State v. Robert James Pope, Jr., 2017AP1720-CR, 11/13/18, District 1 (not recommended for publication), petition for review granted 4/9/19, affirmed, 2019 WI 106, ; case activity (including briefs)
Here’s good one for SCOW. A jury convicted Pope of 2 counts of 1st degree homicide in 1996. His lawyer forgot to file a notice of intent. Twenty years later, the State stipulated to reinstatement of Pope’s direct appeal. He tried to order transcripts but couldn’t because the court reporters had destroyed their notes. The circuit court ordered a new trial, but the court of appeals reversed because his new lawyer could not predict what “colorable claims” lurked in transcripts that weren’t prepared and could never be reconstructed.
Defendant forfeited competency objection; had no right to counsel on OWI 2nd mischarged as OWI 1st
St. Croix County v. Kimberly L. Severson, 2017AP1111, 11/13/18, District 3, (i-judge opinion, ineligible for publication); case activity (including briefs)
This is a City of Eau Claire v. Booth redux. In 2001 Severson was charged with OWI 1st in Eau Claire County and convicted of a separate OWI 1st in St. Croix County. Had St. Croix conviction been properly charged as an OWI 2nd, Severson would have had a constitutional right to counsel. But te court of appeals, applying Booth, held that Severson’s failure to object to the St. Croix County circuit court’s lack of competency to proceed to judgment forfeited that issue for appeal.
Another garage hot pursuit case
State v. Jonalle L. Ferraro, 2018AP498, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity
As in Palmersheim just last week, here we have another successor to Weber from the 2016 term – an officer follows a driver (or recent driver) into his or her garage to arrest.
Being slumped over in driver’s seat in running car with odor of intoxicants on breath, red and glassy eyes, slurred speech, unexplained injuries, slow movements created probable cause to arrest
State v. Michael E. Hale, 2018AP812, 11/8/18, District 1 (one-judge decision; ineligible for publication) case activity (including briefs)
Hale appeals the circuit court’s order that he unreasonably refused a chemical test; the only issue on appeal is whether the officer had probable cause.
Failure to raise issue in circuit court forfeits it on appeal
Monroe County v. B.L., 2018AP694, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity
B.L. argues on appeal that the doctor who initiated his emergency detention could not also be one of the examiners appointed under Wis. Stat. § 51.20(9)(a)1.. The court does not address the argument, because B.L. raises it for the first time on appeal.
No error in granting summary judgment in TPR case as to one period of abandonment
Juneau County DHS v. L.O.O., 2018AP654, District 4, 11/8/2018 (one-judge decision; ineligible for publication); case activity (including briefs)
The County filed a TPR petition alleging as grounds that L.O.O. abandoned his child under § 48.415(1)(a)2. The County alleged 6 three-month periods of abandonment. (¶4). Because there was no issue of material fact as to one of the periods (from January 1 to May 2, 2016), summary judgment was appropriate.