On Point blog, page 120 of 484
Radar was working, so speed reading provided reasonable suspicion for stop
City of Watertown v. Jeffrey Donald Perschke, 2018AP555, District 4, 10/18/18 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer stopped Perschke after the radar device the officer was using clocked Perschke going 38 in a 25-mile-per-hour zone. Perschke claims the officer lacked reasonable suspicion to stop him because the radar wasn’t working properly, but the circuit court’s finding to the contrary dooms Perschke’s argument.
Claim of ignition interlock didn’t negate probable cause for PBT
State v. Jesse J. Kain, 2018AP951, 10/17/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
Kain appeals his drunk driving conviction, arguing the officer that stopped him lacked the probable cause necessary to ask him to take a preliminary breath test. (See Cty. of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999).)
Sentencing court assures defendant: “You can ask for expunction later.” Court of appeals says: “No, you can’t”
State v. Kole R. Eichinger, 2017AP1845-1847-CR, 10/16/18, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
This case highlights an expunction issue that SCOW still needs to resolve. Prior to 2014, circuit courts often delayed deciding expunction until they saw how a defendant did on probation. State v. Matasek, 2014 27, 353 Wis. 2d 601, 846 N.W.2d 811 changed that practice. It clarified that courts must decide whether to order expunction at the time of sentencing. What about all of the defendants who were expressly told at sentencing that they could apply for expunction after they completed probation?
Court of Appeals upholds TPR
Rock County DHS v. L.H., 2018AP1308, 10/11/18, District 4 (one-judge decision; ineligible for publication); case activity
L.H. challenges the circuit court’s finding that the county department established continuing-CHIPS grounds for termination of her parental rights to her daughter. She says the county can’t have met its burden to show a “substantial likelihood” she wouldn’t meet the conditions of return within nine months, Wis. Stat. § 48.415(2)(a)3. (2015-16) (recently amended), because the court said “I don’t know” whether she’d meet the conditions.
Counsel not ineffective for failing to object to vouching at trial and impermissible factors at sentencing
State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)
The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.
Challenges re right to self-representation and domestic abuse assessment fail on appeal
State v. Sandra D. Solomon, 2018AP298-CR, 9/25/18, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Solomon sought plea withdrawal arguing that the circuit court had denied her request to represent herself and insisted on proceeding with the scheduled trial date, so her newly-retained lawyer was not prepared to defend her. The court of appeals held that her invocation of this right was not clear and unequivocal. It also held that the domestic abuse assessment clearly applied to this case.
Detective’s narrative of events shown on surveillance videos properly admitted under lay opinion rule
State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)
Applying State v. Small, 2013 WI App 117, 351 Wis. 2d 46, 839 N.W.2d 160, and the lay opinion rule, § 907.01, the circuit court properly allowed a detective to narrate the events recorded on multiple surveillance cameras based on his having viewed the recordings “many times.”
Ch. 51 commitment extension and medication order upheld
Winnebago County v. B.C., 2018AP846-FT, District 2, 9/5/18 (one-judge decision; ineligible for publication); case activity
B.C. challenges the sufficiency of the evidence to extend his commitment and involuntarily medicate him. His challenge fails.
Plea to TPR petition valid despite prior finding of incompetency
State v. R.D.S., 2017AP1771, District 1, 9/18/18 (one-judge decision; ineligible for publication); case activity
R.D.S. moved to withdraw her no-contest plea to a TPR petition, saying her plea was not knowing, intelligent, and voluntary because of the cognitive disabilities for which she was found to be incompetent during the underlying CHIPS proceedings and a criminal case involving charges of abuse of her child. The circuit court denied the motion after an evidentiary hearing, and court of appeals affirms.
Denial of evidentiary hearing in remanded TPR wasn’t erroneous
State v. B.D.S., 2017AP1770, District 1, 8/27/18 (one-judge decision; ineligible for publication); case activity
B.D.S. filed a motion for postdisposition relief seeking to withdraw his no-contest plea to a TPR petition, alleging there was an issue about his competency to understand the proceedings. (¶9). The court of appeals rejects his claim that the circuit court was required to hold an evidentiary hearing on the motion.