On Point: 46. WI Court of Appeals

State v. Aman D. Singh, 2017AP1609, 7/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

We last saw Singh attempting, and failing, to get his long-ago second-offense OWI dismissed by a writ of coram nobis. After that, he went back to court arguing that the count should be dismissed because of  Wis. Stat. § 345.52 (which says that a judgment in a traffic ordinance action bars state proceedings for the same violation) and Wis. Stat. § 973.17 (which says excessive sentences are void).

State v. Arthur Allen Freiboth, 2018 WI App 46; case activity (including briefs)

In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:

State v. Terrance Lavone Egerson, 2018 WI App 49; case activity (including briefs)

Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.

State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)

Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.

State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)

Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.

Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)

Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.

Monroe County DHS v. A.D., 2018AP825, District 4, 7/5/18 (one-judge decision; ineligible for publication); case activity

A.D. argues the circuit court shouldn’t have granted summary judgment as to the grounds of the petition to terminate her parental rights, which alleged continuing denial of periods of physical placement or visitation under § 48.415(4). She also challenges the constitutionality of § 48.415(4), both on its face and as applied to her. The court of appeals rejects both arguments.

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.