On Point blog, page 137 of 487
COA finds reasonable suspicion for stop and probable for OWI arrest
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.
Parents are not entitled to an initial appearance or discovery of ADA’s emails in TPR cases
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.
No due process violation in applying TPR grounds
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.
Circuit court properly rejected claim that refusal was justified due to physical disability or disease
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.
Court of Appeals rejects challenges to child sexual assault convictions
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.
February 2018 publication list
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)
Defendant pleading NGI doesn’t need to know maximum length of commitment
State v. Corey R. Fugere, 2018 WI App 24, affirmed, 2019 WI 33; case activity (including briefs)
Because civil commitment is neither punishment nor a direct consequence of a guilty or no contest plea, a defendant entering an NGI plea does not have to be advised during the plea colloquy of the maximum term of commitment that could be ordered.
Court of Appeals asks SCOW to review juvenile life sentences
State v. Curtis L. Walker & State v. Omer Ninham, 2016AP1058 & 2016AP2098, Districts I & III, 3/6/18; case activity (including briefs): Walker; Ninham
Issue:
We certify these appeals to determine whether Wisconsin case law regarding life sentences without parole for juvenile murderers comports with recent pronouncements from the United States Supreme Court, and whether the sentencing courts in these cases adequately considered the mitigating effect of the defendants’ youth in accord with those Supreme Court pronouncements.
Court of Appeals construes “directed at” element of stalking statute
State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.
Other-acts evidence proper; prosecutor’s closing improper, but not prejudicial
State v. Deandre D. Rogers, 2017AP670-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)
Evidence that Rogers was identified as a passenger in a vehicle reported stolen was properly admitted in his armed robbery trial because it provided “context” and “background” to one of the robbery charges for which he was on trial. And while the prosecutor made in improper argument in rebuttal closing because it wasn’t based on any evidence whatsoever, the argument wasn’t prejudicial.