On Point: 46. WI Court of Appeals

State v. Dorian M. Torres, 2018 WI App 23; case activity (including briefs)

Dorian Torres’s mother Shelly allowed police into the apartment Dorian was living in with his father, Emilio. The police found Emilio’s body during a search of the apartment, leading to Dorian being charged with homicide. The court of appeals holds the police reasonably relied on Shelly having authority to consent to their entry and search of the apartment.

State v. Daniel Wilson, 2017AP813-CR, 3/27/18, District 1 (not recommended for publication); case activity (including briefs)

This appeal raises, among others things, a novel issue specific to child sexual assault cases. Is the State actually required to prove the 2nd element of repeated child sexual assault–that at least 3 assaults took place “within a specified period of time” as §948.025(1)(b) plainly states? Or is it relieved of that burden by virtue of various opinions holding that the State does not have to prove the “specifics” of a child sexual assault?

State v. J.C., 2017AP1783, District 1, 3/27/18 (one-judge decision; ineligible for publication); case activity

J.C. pleaded no contest to the continuing CHIPS grounds alleged in the petition for termination of her parental rights. She later argued her plea wasn’t supported by sufficient evidence because, at the fact-finding hearing required under § 48.422(3) for no-contest pleas, there was no evidence the child welfare department made reasonable efforts to provide her with court-ordered services. Applying Waukesha County v. Steven H., 2000 WI 28, 233 Wis. 2d 344, 207 N.W.2d 207, the court of appeals holds that even if the record of the fact-finding hearing was deficient, there was other evidence in the record to make up for it.

State v. Chad David Knauer, 2017AP2243-CR, 3/22/18, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

Hats off to defense counsel, the circuit court, and court of appeals for the decision in this case. The State charged Knauer with misdemeanor theft of property. Police had interviewed him for just 1 hour at about 11 p.m. at the county jail. He admitted to stealing a trailer and storing it at his aunt’s and uncle’s house. But then police told Knauer that if any other stolen property was found at the same location they would arrest his aunt and uncle. The circuit court held that threatening to arrest Knauer’s relatives when police lacked probable cause that they had committed a crime was an improper interrogation tactic that rendered his confession involuntary. 

State v. Robert L. Bentz, 2017AP1436-CR, 3/21/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

The State charged Bentz with OWI 3rd and PAC 3rd. Bentz moved to suppress evidence for lack of reasonable suspicion to detain and lack of probable cause to arrest. The circuit court denied his motion. The appeal concerned the point at which the law enforcement officer seized Bentz and the evidence supporting reasonable suspicion and probable cause.

State v. D.C., 2017AP1635, 3/20/18, District 1 (one-judge opinion; ineligible for publication); case activity

The circuit court terminated D.C.’s parental rights to his child, A.D.C.  On appeal, D.C. argued that the trial court (1) lost competency to proceed when it failed to conduct an initial appearance in the case, and (2) erred in denying his request for discovery of emails between the ADA and the Child Protective Services case manager.

State v. T.S.R., 2017AP548, 3/20/18, District 1 (one-judge decision; ineligible for publication); case activity

T.S.R. appeals the termination of her parental rights to her daughter. She argues that the two statutory grounds on which she was found unfit–continuing CHIPS and failure to assume parental responsibility–violate due process as applied to her.

City of Chetek v. Daniel John McKee, 2017AP207, District 3, 3/15/18 (one-judge decision; ineligible for publication); case activity (including briefs)

McKee claimed he was justified in refusing to submit to a breath test under § 343.305(9)(a)5.c. because his chronic gastroesophageal reflux disorder (GERD) and resulting Barrett’s esophagus rendered him physically unable to take the test. (¶¶3-4). McKee sought to admit his medical records as evidence at the refusal hearing, but the circuit court sustained the prosecutor’s objection that they weren’t properly authenticated. (¶5). Further, based on the testimony of the arresting officer, the circuit court found McKee refused out of a concern for his job, not because of his medical condition. (¶¶6-7). The court of appeals rejects McKee’s challenges to the circuit court’s rulings.

State v. Timothy P. Gregory, 2016AP1265-CR, District 2, 3/14/18 (not recommended for publication); case activity (including briefs)

In this lengthy decision, the court of appeals rejects multiple challenges Gregory makes to his convictions for child sexual assault that occurred in 1997.

On February 28, 2018, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Marcos Rosas Villegas, 2018 WI App 9 (addressing guilty plea waiver rule and holding lawyers need not advice clients about DACA consequences of plea)

State v. Mario Douglas, 2018 WI App 12 (inaccurate advice about consequences of going to trial invalidated plea)