On Point: 46. WI Court of Appeals

State v. Orlando Lloyd Cotton, 2016AP2211-CR, District 1, 2/13/18 (not recommended for publication); case activity (including briefs)

Cotton was convicted of being party to the crime of possession of cocaine and marijuana with intent to deliver and keeping a drug house. He unsuccessfully argues the evidence wasn’t sufficient to convict him and that his trial lawyer was ineffective.

State v. J.D.V., 2017AP1057, District 3, 2/13/18 (one-judge decision; ineligible for publication); case activity

J.D.V. (given the pseudonym “Joseph” by the court) was adjudged delinquent for punching Thomas, another juvenile, in the head outside of school. The incident was recorded by Charles, another student, using his electronic device. Based primarily on that recording the trial court rejected Joseph’s self-defense claim—rightly so, says the court of appeals.

State v. L.M.O., 2017AP1814, District 1, 2/13/18 (one-judge decision; ineligible for publication); case activity

L.M.O. argues that there was insufficient evidence for the circuit court to find that he failed to assume parental responsibility for his child D.A.M. He also argues the court’s findings violated his due process rights because they were based on D.A.M.’s out-of-home placement and L.M.O.’s subsequent lack of contact with D.A.M. while a no-contact order was in effect. The court of appeals rejects his claims.

State v. L.J., 2017AP2380, 2017AP2381, & 2017AP2382, District 1, 2/13/18 (one-judge decision; ineligible for publication); case activity

L.J. argues the circuit court terminated her parental rights to her children without properly considering whether her children had a substantial relationship with her or her family members. The court of appeals disagrees.

State v. Amanda L. Longley, 2017AP659-CR, District 4, 2/8/18 (1-judge opinion. ineligible for publication); case activity (including briefs)

The court of appeals here answers this questions “no,” based on SCOW’s recent and narrow reading of Padilla in State v. Le Mere, 2016 WI 41, 368 Wis. 2d 624, 879 N.W.2d 580. See Mike Tobin’s post on Le Mere here). But Wisconsin’s case law is conflicting, suggesting that this issue may be worthy of scrutiny by a higher court.

State v. Dustin R. Willette, 2017AP888, District 3, 2/6/18 (1-judge opinion, ineligible for publication); case activity (including briefs)

A police dispatcher informed officer Hughes that a caller saw a man drive into gas station, exit his car, and walk away. Then another officer reported seeing a similarly-dressed man walking down the a road about a mile away. That man was Willette. Officer Hughes picked him up, drove him back to the car at the gas station, performed FSTs, arrested him for OWI, and asked him to submit to a blood test. Willette did not say  “yes” or “no.” He said “I want to speak to a lawyer.” Here’s why the circuit court found probable cause to arrest and improper refusal to submit to a blood test.

On January 31, 2018, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Antonio A. Johnson, 2018 WI App 2 (defendant entitled to a day of credit for portion of a day spent in custody)

State v. Taran Q. Raczka, 2018 WI App 3 (whether defendant was negligent in not taking seizure medication is a jury question)

State v.

State v. Marcos Rosas Villegas, 2018 WI App 9; case activity (including briefs)

This opinion resolves 2 issues worthy of publication and has already generated a petition for review (from an earlier version of the opinion, which was withdrawn and has now been replaced).  According to the court of appeals, an attorney does not perform deficiently by failing to inform his client, an undocumented immigrant, that a plea would render him inadmissible to the U.S. and ineligible for DACA. Furthermore–for the first time–the court of appeals holds that the “guilty plea waiver” rule applies to claims of ineffective assistance of counsel, unless such a claim is offered as a reason to overturn the plea itself.

State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113;  case activity (including briefs)

Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?

State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)

A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC.  Conviction reversed!