On Point: 46. WI Court of Appeals

State v. Larry Davis, 2017 WI App 55; case activity (including briefs)

Applying § 304.072(4) and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, the court of appeals holds that a person who is revoked from extended supervision resumes serving his sentence when he is received in the prison system, not when revocation occurs; he is therefore entitled to sentence credit up to the date he returns to prison.

State v. M.W., 2016AP2045 & 2046, 7/11/17, District 1 (one-judge decision; ineligible for publication); case activity

M.W. pled no contest to a continuing CHIPS ground in the initial phase of the termination of her parental rights. She argues on appeal that the court erred in hearing factual basis testimony after her plea colloquy and in finding unfitness when she did not agree with some of the factual basis presented.

State v. Santos Lee Hernandez, 2017AP62-CR, 7/11/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Hernandez filed a postconviction motion arguing that he pled guilty to lewd and lascivious behavior while he was drunk–so drunk that he incorrectly told the court that he had not consumed alcohol within the previous 24 hours, that he understood the rights he was waiving, and that there was a factual basis for his plea. In rejecting his claim, the court of appeals commits an error that continues to dog postconviction motions.

State v. A.S.F., 2016AP2076, and State v. V.C., Jr., 2016AP2077, both District 1, 7/11/17 (one-judge decisions ineligible for publication); case activity: A.S.F.; V.C.

In this pair of decisions addressing the termination of the parental rights of both parents of J.T.C., the court of appeals rejects the parents’ claim that it was error to allow J.T.C.’s adoptive parent to testify that she would allow contact between the child and members of his biological family if the court terminated the parents’ rights. The court also rejects V.C.’s argument that the circuit court improperly relied on evidence from A.S.F.’s trial to “prove up” the factual basis for V.C.’s no-contest plea to the petition.

State v. K.P., 2017AP612 & 613, 7/11/2017 (one-judge decision, ineligible for publication); case activity

K.P. appeals the termination of his parental rights to his two children. He argues that the circuit court erred in striking his contest posture and finding him unfit after he failed to show up for the scheduled jury trial on his parental fitness.

State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)

The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.

State v. Marcus L. Pantoja, 2016AP1289, 7/05/17, District 1 (not recommended for publication); case activity (including briefs)

Police raided the apartment where Pantoja was living with his girlfriend; he claims on appeal that there was neither probable cause for the warrant nor reasonable suspicion of danger justifying its no-knock authorization, which turned up drugs and guns. The court of appeals disagrees and affirms.

State v. Java I. Orr, 2016AP2009, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

Orr raises and loses 3 issues relating to the sentence credit that he received in this case. He argues that (1) he should have been allowed withdraw his plea because trial counsel gave him incorrect infromation regarding the sentence credit he would receive; (2) the actual amount of sentence credit he received is a new factor warranting modification of his sentence; and (3) the trial court sentenced based on inaccurate sentence credit information.

State v. James D. Carter, 2016AP1054-CR, District 1, 7/5/17 (not recommended for publication); case activity (including briefs)

Carter was charged in a 20-count information with various crimes, most of them involving theft and forgery arising out of a scam Carter perpetrated against multiple victims using the same basic modus operandi in October and November. But he was also charged with a burglary in June, which wasn’t part of the scam and looked nothing like the acts committed during the scam. (Pages 3-5). [NB: We’re citing to pages rather than paragraphs because on pages 6-7 and 12-15 the paragraph numbering is messed up.] The court of appeals rejects his argument that the burglary charge was improperly joined to the other charges.

State v. S.D., 2016AP1701-1702, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity

This TPR appeal raises a number of interesting issues ranging from a Daubert challenge to the State’s psychologist and “parenting capacity assessment” to an ineffective assistance of counsel claim for failure to raise an “unconstitutional as applied” challenge to the standard jury instruction on “failure to assume parental responsibility.”