On Point blog, page 162 of 485
Wide turn into left-hand lane, slow speed among factors justifying stop
City of Eau Claire v. David Eugene Phelps, 2016AP248, District 3, 12/28/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Contrary to the circuit court’s conclusion, a police officer’s observations about Phelps’s driving provided more than a “hunch” and justified the stop of his car.
Defense win: TPR order reversed because it was based on circuit court’s mistake about its authority
T.M.H. v. A.N.W., 2016AP1981, District 4, 12/29/16 (one-judge decision; ineligible for publication); case activity
The biological father of J.H. petitioned to terminate the parental rights of the biological mother, A.W. The circuit court granted the petition, but only after concluding it could order continued visitation between J.H. and his maternal great-grandmother, with whom J.H. had an important relationship. It turns out the circuit court did not have that authority. Because the circuit court said it “absolutely, positively” would not terminate A.W.’s rights unless it could order continued visitation by the great-grandmother, the termination order is reversed.
Community caretaking justified contact with man sleeping or passed out in car
State v. John D. Myer, 2016AP490-CR, District 4, 12/22/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Assuming a police officer’s contact with Myer constituted a seizure, it was justified under the community caretaker doctrine.
Right to be present at trial waived
State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)
Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.
WEAJA doesn’t cover forfeiture action brought by the State instead of a state agency
State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)
The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”
Summary judgment in TPR case affirmed
Jefferson County DHS v. C.C., 2016AP1983, District 4, 12/21/16 (one-judge decision; ineligible for publication); case activity
The circuit court properly granted summary judgment on the petition terminating C.C.’s parental rights despite C.C.’s claims that the circuit court violated the mandatory notice provision under § 802.08(2) and that a genuine issue of material fact exists on the issue of grounds for termination.
Court rejects claim that revocation hearing lawyer was ineffective
State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)
Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.
Expungement decision requires proper exercise of discretion, including statement of rationale
State v. Rachel M. Helmbrecht, 2017 WI App 5; case activity (including briefs)
A circuit court’s decision on whether to order expungement under § 973.015 involves the exercise of discretion, and therefore the general rules governing the proper exercise of discretion apply to the expungement decision.
Objective facts justified officer’s contact with driver
State v. Marie A. Martin, 2016AP913-CR, District 1, 12/20/16 (one-judge decision; ineligible for publication); case activity (including briefs)
A police officer’s contact with the driver of a car idling in a parking lot at 2:00 a.m. was lawful because the objective facts justified a reasonable suspicion of criminal activity.
Time, place, quick turn, hanging out in parking lot = reasonable suspicion of OWI
State v. Gregory J. McMillan, 2016AP127-CR, 12/16/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
12:30 a.m., Saturday, Dodge Charger, driving away from tavern-rich area of McFarland. No bad driving, but a “relatively sudden” right turn with a squad two car lengths behind. The turn is onto a dead-end street with only “large industrial-type buildings.” Officer drives around a back way and sees McMillan standing at the back of his car talking on his phone. From where he’s standing, McMillan could have snuck into the shadows had he seen the squad following him, instead of coming around a back way. Officer stops McMillan. Reasonable suspicion?