On Point blog, page 141 of 485
Defense win: Defendant entitled to a day of credit for portion of a day spent in custody
State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)
Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Traffic stop to investigate erratic driving wasn’t improperly extended
State v. Travis J. Rose, 2018 WI App 5; case activity (including briefs)
A police officer investigating reports of Rose’s erratic driving concluded Rose was not intoxicated by alcohol, but continued to detain him and, after securing consent, searched Rose’s car, where he found narcotics. The court of appeals holds the officer’s continued detention of Rose, and thus the consent to search the car, were lawful because the officer had reasonable suspicion to continue his investigation.
Admission to TPR ground was valid
State v. S.N.N., 2016AP2102 & 2016AP2103, District 1, 12/12/17 (one-judge decision; ineligible for publication); case activity
S.N.N. admitted the continuing CHIPS ground that was alleged in the TPR petition regarding her two children. The court of appeals rejects her claim that her admission was not knowing and voluntary.
Extension of stop, FSTs okay, no reversal for error of law regarding probable cause for PBT
State v. Bradley E. Ammann, 2017AP866-CR, 12/7/17, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
A state trooper stopped Ammann for speeding as he and his wife were driving home from a wedding reception. The trooper asked Amman to exit the car and then smelled intoxicants on him. This led to field sobriety tests and then a preliminary breath test showing that Ammann had an .068 alcohol concentration. He almost escaped with a mere citation for speeding except the trooper had to go and check his driving record.
Court of appeals rejects assorted challenges to drunk driving conviction
State v. Lonnie S. Sorenson, 2016AP1540-CR, 12/5/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Sorenson appeals jury-trial convictions for operating with a PAC and possession of drug paraphernalia. He was also found guilty of operating with a detectable amount of THC in his blood, but this was dismissed by operation of statute. See Wis. Stat. § 346.63(2)(am). He raises ineffective assistance, pretrial discovery, and confrontation issues, but the court rejects them all.
COA rejects ineffective of assistance of trial counsel claim due to appellate lawyer’s failure to develop argument on prejudice
State v. D.C., 2016AP2229-2230, District 1, 11/30/17 (1-judge opinion, ineligible for publication); case activity
During the grounds phase of her TPR proceeding, D.C.’s lawyer asked the trial court to: (1) instruct the jury that she was prohibited from having visitation with her children for a period of time, and (2) give curative instructions that it was impossible for her to perform a condition for return of her kids and to assume parental responsibility due to her incarceration. The court planned to rule on these requests just before trial, but, oops, that did not happen.
Quasi-anonymous tip, prolonged stop at at intersection gave reasonable suspicion for stop
State v. Xavier Grullon, 2016AP2404-CR, District 3, 11/28/17 (one-judge decision; ineligible for publication); case activity (including briefs)
A tip from a 911 caller together with an officer’s observations provided reasonable suspicion for a traffic stop, holds the court of appeals.
Odor of marijuana is probable cause for search; text messages admissible as “panorama” or “other acts” evidence
State v. Willie Brownlee, Jr., 2015AP2319-CR, 11/21/17, District 1, (not recommended for publication); case activity (including briefs)
Two officers stopped Brownlee after he drove his rental car through a red light. One officer approached the driver’s side, the other approached the passenger side occupied by Brownlee’s friend. Both smelled the distinct odor of burnt marijuana. They ordered Brownlee and his friend out of the car and searched it. Guess what they found in the glove compartment?
Good faith exception to exclusionary rule applies to pre-Rodriquez dog sniff
State v. James R. Stib, 2017AP3-CR, District 2, 11/15/17 (not recommended for publication); case activity (including briefs)
Stib argues his traffic stop was unlawfully prolonged to conduct a dog sniff under Rodriguez v. United States, 135 S. Ct. 1609 (2015). Assuming Stib is correct, suppression of the evidence seized after the dog alerted is inappropriate under the good-faith exception to the exclusionary rule because the dog sniff was conducted in objectively reasonable reliance on then-existing precedent, namely, State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748.