On Point: 46. WI Court of Appeals

In re the Finding of Contempt in: State v. Shafia M. Jones, 2107AP2359, District 2, 5/9/18 (UNCITABLE SUMMARY DISPOSITION); case activity (including appellant’s brief)

This is a summary order, the holding of which may be of interest to trial lawyers. Because it is a summary order, it may NOT be cited “in any court of this state as precedent or authority,” § 809.23(3)(a). But the reasoning the court of appeals gives for its holding cites to and relies on published decisions. So if a circuit judge orders your client to sign his or her bond and threatens your client with contempt for refusing to do so, you should fight back using the same authority cited by the court of appeals in this summary order.

State v. Dale R. Delvoye, 2017AP833, 7/3/18, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

At Delvoye’s OWI trial, an officer testified that as part of the stop he asked Delvoye to take a preliminary breath test. Counsel objected and moved for a mistrial. The trial court denied the mistrial, and the court of appeals affirms.

State v. Paul E. Ayala, 2017AP1510, 7/3/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayala was charged with OWI. A blood test showed a high level of Ambien in his system. He sought to defend on the ground of involuntary intoxication by presenting a pharmacologist’s testimony that he had a stomach condition that caused the drug to build up in his system. 

State v. M.A.H., 2017AP1785 & 2017AP1786, District 1, 7/3/18 (one-judge decision; ineligible for publication); case activity

State v. K.C.H., 2017AP1787 & 2017AP1788, District 1, 7/3/18 (one-judge decision; ineligible for publication); case activity

M.A.H. and K.C.H. entered no-contest pleas to the continuing CHIPS grounds alleged in the petitions to terminate the parental rights to their children. They later challenged those pleas, arguing they weren’t voluntary because they were induced by a promise to allow additional visitation  of the children, who were in foster care, pending a disposition hearing if they entered the pleas. Their challenge fails because there was no such promise.

State v. Dion Lashay Byrd, 2017AP1968, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Byrd was convicted of making a bomb threat to the Fox 6 TV station in Milwaukee. He claims the sentencing court relied on two improper factors in imposing the maximum sentence for this Class I felony. First, he says the court coerced him into making self-incriminating statements during his sentencing allocution–statements that could not be used against him at sentencing under the Fifth Amendment. Second, he contends the court should not have based its sentencing decision on its stated dissatisfaction with the statutory maximum.

State v. Delano Maurice Wade, 2017AP1021, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Wade appeals his jury-trial conviction of sexual assault and false imprisonment. He argues that certain of his accuser’s statements, related by police officers on the stand, were hearsay, and that the court erred in addressing a jury question when he was absent.

On June 27, 2018, the court of appeals ordered the publication of the following criminal law related decision:

State v. Dylan D. Radder, 2018 WI App 36 (“boilerplate” motion to suppress didn’t contain sufficient allegations to merit an evidentiary hearing)

Marathon County v. P.X., 2017AP1497, 6/26/18, District 3, (1-judge opinion, ineligible for publication); case activity

P.X. is autistic, non-verbal, intellectually and developmentally disabled and has obsessive compulsive disorder and pica. The question is whether he is capable of “rehabilitation,” which would make him a proper subject for treatment on Chapter 51. If not, then he should be placed under Chapter 55. The court of appeals held that even though P.X.’s disabilities cannot be cured and he can never function in society, his OCD and pica could be controlled with medication, so Chapter 51 applies. Under Chapter 51, a person can be committed to a mental institution for years, but Chapter 55 bars protective placement in a unit for the acutely mentally ill. See §55.12(2). This decision seems to let the county accomplish through Chapter 51 what it cannot do through Chapter 55. Let’s hope P.X. petitions SCOW for review.

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

State ex rel. Drazen Markovic v. Jon E. Litscher, 2018 WI App 44; case activity (including briefs)

The Department of Corrections has the authority to take certain funds from an inmate’s account to pay the restitution ordered in a case even though the inmate has finished serving the sentence in that case.