On Point blog, page 144 of 484
Uncertified DOT driving record + JOC on CCAP + court of appeals opinion = proof of countable prior OWI offense
State v. Kory v. Ambroziak, 2017AP22-CR, 9/19/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)
Ambroziak argued that he was incorrectly sentenced for a 2nd-offense OWI because the State had failed to prove the existence of a prior OWI-related offense beyond a reasonable doubt. But the court of appeals held that the State carried its burden. Thus, the circuit court correctly sentenced Ambroziak with second-offense OWI penalties.
No error in granting guardianship to grandparents
Waukesha County DHHS v. T.C.S., 2016AP1000 & 1001, 9/13/17, District 2 (one-judge decision; ineligible for publication); case activity
This is a case type we rarely come across–an appeal of a guardianship arising out of a CHIPS case. (See generally Wis. Stat. § 48.977.) The circuit court awarded custody of the child at issue to his paternal grandparents; this is the mother’s appeal.
Placing children with their maternal grandfather was not in their best interests
State v. C.L.H., 2017AP1278-1280, 9/6/17, District 1; (1-judge opinion, ineligible for publication); case activity
A circuit court terminated C.L.H.’s parental rights to her biological children, A.L.H., H.H. and M.J.H. The sole issue on appeal was whether the circuit court’s refusal to place the kids with C.H. (their maternal grandfather) and E.B. (his fiancée) amounted to an erroneous exercise of discretion. The court of appeals said “no.”
Challenge to competency of TPR court waived by failure to object
State v. J.M.W., 2017AP158, District 1, 9/6/17 (one-judge decision; ineligible for publication); case activity
J.M.W. contends the steps in the proceedings terminating his parental rights occurred out of order and therefore the circuit court lost competency to conduct a disposition hearing. The court of appeals holds he waived a competency challenge by not raising it in the circuit court first.
Marijuana odor, fleeing teens gave exigent circumstances to search apartment
State v. Robert Torres, 2017 WI App 60; case activity (including briefs)
It’s unclear why this opinion is recommended for publication–it seems to be a pretty straightforward application of the law to a particular fact situation.
Inquiring minds want to know: Can this surcharge be waived?
State v. Michael L. Cox, 2016AP1745-CR, District 2, 8/29/17, certification granted 10/17/17, affirmed, 2018 WI 67; case activity (including briefs)
Issue certified
This case raises a single question: whether a sentencing court retains any discretion under Wis. Stat. § 973.046 (2015-16), to waive DNA surcharges for crimes committed after January 1, 2014.
The statutes authorize fines for 7th and greater OWI offenses
State v. Michel L. Wortman, 2017 WI App 61; case activity (including briefs)
A glitch in the OWI penalty statute appears to suggest that OWI 7th and greater offenses don’t allow for a fine, but only for the imposition of the forfeiture provided for first-offense OWI. The court of appeals concludes otherwise. The court also rejects Wortman’s claim that he was under arrest when a sheriff’s deputy transported him back to the scene of the accident he was in.
Court of appeals finds faults in motion to withdraw plea, but not in colloquy
State v. Donald L. White, 2017AP188-CR, 8/23/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
White argued that his plea colloquy was defective because the circuit court did not (1) sufficiently describe the nature of the charge against him, (2) ascertain his education or level of comprehension, especially of the constitutional rights that he was waiving, (3) advise him that he was not bound by the plea agreement and could impose the maximum penalty. He relied primarily on State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716 N.W.2d 906. The court of appeals distinguished White from Brown and affirmed the decision to deny the motion for plea withdrawal without a hearing.
Court of appeals affirms “Badger stop;” defendant was free to leave despite questions and armed back-up officer
State v. Michael A. Johnson, 2017AP331-CR, District 2, 8/23/17 (1-judge opinion, ineligible for publication); case activity (including briefs)
Officer Baldwin stopped Johnson for failing to dim his headlights, then cited him for that and failing to provide proof of insurance for the car he was driving (his mom’s). Baldwin told Johnson that he was free to go, so Johnson started to walk away. Baldwin asked “do you have drugs, weapons or alcohol in the car?” Johnson replied “no.” Baldwin asked if he could search the car. Johnson replied that the car did not belong to him.
Waiver of juvenile to adult court affirmed
State v. A.O., 2016AP2186, District 1, 8/22/17 (one-judge decision; ineligible for publication); case activity
In deciding whether to waive a juvenile into adult court a judge must consider the criteria set out in § 938.18(5). The judge has the discretion to determine how much weight to give to each criterion. J.A.L. v. State, 162 Wis. 2d 940, 960, 471 N.W.2d 493 (1991). According to A.O., the juvenile court in his case didn’t properly apply § 938.18(5)(c), which obliges the court to consider the adequacy and suitability of facilities and services available in the juvenile justice system to treat the juvenile and protect the public. According to the court of appeals, the juvenile court properly exercised its discretion.