On Point: 46. WI Court of Appeals

State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)

While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.

State v. Patricia A. Enriquez, 2015AP1850-CR, District 2, 7/27/16 (not recommended for publication); case activity (including briefs)

After Enriquez made a statement at her sentencing for delivering nonnarcotic controlled substances, the sentencing judge presented the parties with information he had uncovered based on his own internet searches. He claimed the information showed that Enriquez’s misrepresented facts about her nursing license status in Texas and Illinois. Finding that Enriquez’s character for honesty was “miserable” based in part on this ex parte research, the judge sentenced her to consecutive terms of sixty-six months’ imprisonment, far beyond what the state had recommended. But the information the judge dredged up was inaccurate, and because the court relied on that misinformation in sentencing her, Enriquez is entitled to be resentenced.

Kenosha County v. Robert P. Adams, 2015AP2184, District 2, 7/27/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Based on evidence adduced at trial, the roadways at Camp Sol R. Crown were “premises held out to the public for use of their motor vehicles” under § 346.61 and the cases interpreting that statute, in particular State v. Tecza, 2008 WI App 79, 312 Wis. 2d 395, 751 N.W.2d 896 (roadways of private, gated community were held out for public use). Thus, Adams’s driving while intoxicated on those roadways was punishable under § 346.63.

State v. Alejandro Herrera Ayala, 2015AP865-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals affirms the circuit court’s findings that the manner in which standardized field sobriety tests were administered to Herrera Ayala was “fatally flawed” because of “significant communication issues” between the officer and Herrera Ayala (a Spanish speaker with apparently limited English) and that those flaws made the SFSTs “unreliable” for purposes of determining probable cause to arrest. 

State v. Michael L. Joy, 2015AP960-CR, District 3, 7/26/16 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer’s multiple good-faith factual mistakes didn’t invalidate his stop of a truck to investigate a possible registration violation.

State v. Pagenkopf, 2015AP1855-CR, 7/21/16, District 4 (1-judge opinion, ineligible for publication); case activity  (including briefs)

Per §973.20(13)(c)4, a court commissioner held a hearing and submitted proposed findings of fact and conclusions of law recommending that Pagenkopf pay $19,274.69 in restitution. Pagenkopf sought de novo review via §757.69(8), which provides that a “decision” by a court commissioner shall be reviewed by the circuit court upon the motion of any party.  According to the court of appeals, §757.69(8) does not apply to a commissioner’s restitution findings.

State v. Mark G. McCaskill, 2015AP1487-CR, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

McCaskill’s challenges to his arrest and conviction for operating with a prohibited alcohol content don’t persuade the court of appeals.

State v. Jermaine D. Greer, Sr., 2015AP692, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Greer filed a pro se motion for postconviction relief under § 974.06. It is his fourth postconviction motion and—like his third postconviction motion, which he also filed pro se—it argued he is entitled to withdraw his pleas. Greer doesn’t explain why the grounds for plea withdrawal he raises in his fourth motion could not have been raised in his third motion,

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.