On Point: 46. WI Court of Appeals

State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)

Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.

State v. Travail L. Lewis, 2017AP234-CR, 7/25/17 (1-judge opinion, ineligible for publication); case activity (including briefs)

After shots were fired in a high crime area of Milwaukee, police dispatched Officer Robert Crawley (no relation to the 7th Earl of Grantham) to investigate. He and his partner saw Lewis (African American) walking down an alley holding the waistband of his pants. They told him to stop and hold up his hands. Then they drew their guns. Lewis told them that he had a gun but no permit, so they arrested him. The State charged him with misdemeanor carrying a concealed weapon. Lewis  filed an unsuccessful suppression motion. On appeal, the State wisely conceded that the officers lacked reasonable suspicion to stop Lewis based on State v. Gordon, 2014 WI App 44, 353 Wis. 2d 468, 846 N.W.2d 483.

State v. Janaya L. Moss, 2016AP1856-CR, 7/25/17 (1-judge decision; ineligible for publication); case activity (including briefs)

Moss and another woman had a fight in a bar; responding police found Moss intoxicated to the point of incoherence. They arrested the other woman and frisked her, but could not find any identification (she would give only a first name). One officer noticed a wallet on a nearby table and asked the other woman if it was hers; she did not respond. The officer opened the wallet, revealing Moss’s ID but also cocaine and marijuana.

State v. K.H., 2016AP1180, District 1 (1-judge opinion, ineligible for publication); case activity

During a lengthy colloquy regarding her “no contest” plea to grounds for terminating parental rights to her son, K.H. “seemed confused.” She said she hadn’t taken all of her prescribed medication. The court was concerned that she “was not able to fully understand the proceedings.” So her lawyer conducted a direct examination to determine her understanding of what she was doing. Eventually, the court was satisfied that she did and found that her plea was freely, voluntarily and intelligently given. Then it proceeded to establish a factual basis for it. On appeal, K.H. contends that (1) her plea was not knowing, intelligent and voluntary, and (2) the court erred in accepting the plea before the factual basis for it was proven as required by §48.422(7).

State v. Patrick H. Dalton, 2016AP2483-CR, 7/19/17, District 2 (one-judge decision; ineligible for publication), petition for review granted 11/13/17, affirmed in part and reversed in part, 2018 WI 85; case activity (including briefs)

Patrick Dalton was badly injured in a car crash. He argues on appeal that there was no exigency justifying the warrantless blood draw that revealed his intoxication; he also argues the circuit court erred when it considered his refusal to consent to the blood draw as an aggravating factor for sentencing.

State v. Tracy Dean Martin, 2017AP296, 7/25/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

An anonymous tipster told West Allis police that a man was asleep in a car parked across 4 spots at a Taco Bell. The lot was otherwise fairly empty. A check on the car’s registration revealed that its owner, Martin, had 3 prior OWIs and a .02 alcohol restriction. The officer approached the car, saw the headlights on, the keys in the ignition, and Martin asleep holding a taco in one of his hands.

State v. Andrei R. Byrd, 2014AP2721-CR, District 4 (not recommended for publication); case activity (including briefs)

Byrd was released on bond for 2 felonies that imposed 2 conditions: don’t leave Rock County and don’t commit any new crimes. He went to Illinois, drank too much, and started shouting at a 4th of July party. An officer saw him move toward a woman and raise his hand, causing her to move backward into a defensive posture. He was arrested for assault under Illinois law. Then the State of Wisconsin charged him with 4 counts of felony bail jumping for violating the 2 conditions of the bonds on his 2 felonies (2 x 2 = 4).

State v. Marnie L. Coutino, 2016AP2386-CR, 7/19/2017, District 2 (one-judge decision; ineligible for pubication); case activity (including briefs)

Marnie Coutino seeks resentencing on the ground that the trial court erroneously exercised its discretion when it imposed a 30-day jail sentence without considering whether probation was appropriate.

State v. Alphonso Lamont Willis, 2016AP791-CR, 7/18/17, District 1 (not recommended for publication); case activity (including briefs)

Alphonso Willis appeals his jury-trial conviction of first-degree intentional homicide and being a felon in possession of a firearm. He raises several claims for a new trial and also asks for resentencing. The court of appeals rejects the resentencing claim and some of his complaints of trial error, but concludes that he is entitled to a Machner hearing on his trial counsel’s (1) failure to present testimony that his boots did not match the prints left at the scene and (2) failure to introduce evidence that the homicide occurred at a time when he had already left the vicinity.

State v. Jarred S. Martens, 2016AP2384, District 4, 7/13/17 (one-judge decision; ineligible for publication) case activity (including briefs)

Martens argues police didn’t have probable cause to arrest him for OWI because he didn’t do field sobriety tests and the absence of those tests means the state has to point to other, especially significant evidence to support probable cause. The court of appeals says the law doesn’t support this proposition, and even if it did there was enough evidence to arrest Martens.