On Point blog, page 122 of 484
No hearing on ineffective assistance claim for failure to investigate misconduct claims against sheriff
State v. Alice M. Fischer, 2018AP422-CR, 9/18/18, District 1 (1-judge opinion, ineligible for publication); case activity
This case may sound vaguely familiar. Trial counsel failed to investigate and make use of a claim against a sheriff’s sergeant, Matthew Paradise, the defendant in a civil rights action alleging that he and others conspired to create inaccurate reports leading to a false drunk driving charge against one Tanya Weyker. Turns out Paradise also stopped Fischer for OWI and testified at her trial.
Denial of plea withdrawal, sentence modification and postconviction discovery affirmed
State v. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)
Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.
August 2018 publication list
On August 29, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Arthur Allen Freiboth, 2018 WI App 46 (judge doesn’t have to inform defendant during plea colloquy about mandatory DNA surcharge)
State v. Terrance Lavone Egerson, 2018 WI App 49 (“let me represent myself” wasn’t an unequivocal request by defendant to represent himself)
September 2018 publication list
On September 26, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Norris W. Culver, Sr., 2018 WI App 55 (rejecting constitutional challenges to §§ 942.09 and 941.29)
State v. Christopher A. Mason, 2018 WI App 57 (identify theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents)
Court of appeals sees no ineffective assistance in not challenging phone-tracking warrant
State v. Brinkley L. Bridges, 2017AP2311-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)
Bridges pled to five felonies involving guns and drugs; the evidence against him was derived, in part, from a warrant police had obtained allowing them to track his cell phone. He argues counsel was ineffective for not challenging that warrant because the application didn’t show probable cause.
Court of Appeals rejects constitutional challenges to ban on posting or publishing private pictures, felon in possession statute
State v. Norris W. Culver, 2018 WI App 55; case activity (including briefs)
Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.
Defendant consented to search and had no expectation of privacy in files put on P2P file sharing network
State v. Ronald Lee Baric, 2018 WI App 63; case activity (including briefs)
Police failed to read Baric his Miranda rights, but the court of appeals still found that he consented to a search of his computer. It also resolved a 4th Amendment issue of first impression for Wisconsin: a person has no reasonable expectation of privacy in files he offers for download on a P2P file sharing network.
No error in finding defendant guilty of OWI
Village of Pleasant Prairie v. Brian Lucas, 2017AP2131, District 2, 8/22/18 (one-judge decision; ineligible for publication); case activity
This pro se defendant’s challenges to his OWI conviction go nowhere.
No error in handling testimony regarding non-appearing parent in TPR trial
Monroe County DHS v. J.N.D., 2018AP177, District 4, 8/23/18 (one-judge decision; ineligible for publication); case activity
The court of appeals rejects J.N.D.’s argument that her TPR trial should be redone because the real controversy wasn’t fully tried.
No error in failing to strike allegedly biased juror at TPR trial
Sheboygan County DHHS v. K.N.L., 2017AP2413, District 2, 8/22/18 (one-judge decision; ineligible for publication); case activity
K.N.L. asserts a prospective juror (“Juror J.”) was biased and so the circuit court erred in declining to strike her for cause. Applying Wisconsin’s case law governing jury bias (summarized at ¶¶13-16), the court of appeals affirms the circuit court’s conclusion the juror wasn’t biased and, even if she was, the failure to strike her was harmless as she didn’t end up on the jury because K.N.L. peremptorily struck her.