On Point blog, page 169 of 485
No error in joinder, denial of substitution
State v. Joe Bonds Turney, 2015AP1651-CR & 2015AP1652-CR, District 1, 8/30/16 (not recommended for publication); case activity (including briefs)
Turney claims the trial court erred in permitting joinder of two cases for trial and in denying his motion for substitution of judge following his arraignment. He also argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim, which was based on trial counsel’s failure to object to a witness’s reference to his post-arrest silence. The court of appeals rejects his claims.
Post-disposition change of child’s placement doesn’t merit new dispositional hearing
State v. T.L.T., 2016AP471, District 1, 8/26/16 (one-judge decision; ineligible for publication); case activity
Five months after the circuit court terminated T.L.T.’s parental rights to E.A.T., child welfare authorities moved E.A.T. from his foster placement with V.B. to a new adoptive foster home. T.L.T. argues the termination decision rested heavily on the prospect V.B. would adopt E.A.T., so the post-disposition change in placement materially affects that decision. (¶¶2-12). She asks the court of appeals to exercise its discretionary power to reverse under § 752.35 because the real controversy was not tried and justice miscarried. (¶¶15-16). The court of appeals declines.
Plea withdrawal motion insufficient to merit evidentiary hearing
State v. Jeremy Wand, 2015AP2344-CR, District 4, 8/25/16 (not recommended for publication); case activity (including briefs)
The court of appeals holds that Wand’s postconviction motion for plea withdrawal failed to allege sufficient facts to merit an evidentiary hearing on his claims that his plea was coerced and that his trial lawyers were ineffective by failing to retain certain experts to assist in his defense.
Court of appeals clarifies test for prolonging traffic stop to conduct dog sniff
State v. Katherine J. Downer Jossi, 2016AP618-CR, 8/24/16, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
This court of appeals decision acknowledges what On Point predicted here when SCOTUS issued Rodriguez v. United States, 135 S. Ct. 1609 (2015). That is, Rodriguez, which held that prolonging a traffic stop to conduct a dog sniff requires reasonable suspicion of criminal activity beyond the traffic infraction, effectively overruled State v. Arias, 2008 WI 84, ¶32, 311 Wis. 2d 358, 752 N.W.2d 748, which allowed for a reasonable delay based on the totality of the circumstances (a.k.a. the “incremental intrusion” test).
Findings of fact doom challenge to refusal
State v. S.G./Waukesha County v. S.G., 2015AP2138 & 2015AP2139, District 2, 8/24/16 (one-judge decision; ineligible for publication); case activity (including briefs)
S.G. challenges the revocation of her driver’s license for refusal, arguing the arresting officer didn’t sufficiently convey the implied consent warnings to her. She also challenges the sufficiency of the evidence for her OWI conviction. Neither challenge succeeds.
Defense win: Court of appeals reverses directed verdict for State on PAC charge
Oconto County v. Jonathan E. Van Ark, 2015AP1415, 8/23/16; District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
Van Ark was sitting in his parked pickup truck when a deputy approached him, smelled alcohol, saw his glossy, blood-shot eyes, and observed his slow, slurred speech. A subsequent hospital blood draw indicated that Van Ark had a .237 BAC. The State charged him with OWI and operating with a Prohibited Alcohol Concentration and moved for directed verdicts on both counts. The circuit court denied a directed verdict on the OWI charge, but granted it on the PAC charge. The court of appeals reversed based on WIS JI–CRIMINAL 2660A.
TPR court didn’t err in admitting children’s hearsay statements or expert “bonding” testimony
State v. D.L., 2016AP735 & 2016AP736, District 1, 8/18/16 (one-judge decision; ineligible for publication); case activity
The trial court didn’t err in admitting multiple hearsay statements made by D.L.’s children about her treatment of them or in admitting expert testimony about whether D.L. had a “strong bond” or “positive and healthy relationships” with her children.
Wis. Stat. § 967.08 doesn’t permit telephone testimony at criminal jury trial
State v. Micha S. Pruitt, 2016AP251-CR, District 4, 8/18/16 (one-judge decision; ineligible for publication); case activity (including briefs)
The statute permitting telephone proceedings in criminal cases, § 967.08, does not permit the presentation of testimony by telephone during a criminal jury trial.
Circuit court can revisit expungement after sentencing if it erred in deferring decision at sentencing
State v. Armstrong, 2016AP97-CR, District 2, 8/17/16 (one-judge decision; ineligible for publication); case activity (including defendant’s brief; the state did not file a response brief)
While § 973.015 and State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, require that expungement be decided at the time of sentencing, not put off till after the defendant completes the sentence, a circuit court has the power to decide expungement after sentencing when it erred in deferring, on its own accord, a defendant’s expungement request at the time of sentencing.
Warrantless search of bedroom justified by emergency exception
State v. Sandra D. Noren, 2015AP1969-CR, District 2, 8/17/16 (not recommended for publication); case activity (including briefs)
A police officer responding to a 911 call conducted a warrantless search of Noren’s bedroom and found drugs and paraphernalia. The court of appeals holds the search was justified under the emergency exception to the warrant requirement.