On Point blog, page 177 of 485
Evidence sufficient; judge’s ex parte communication harmless
State v. Jeffrey S. Decker, 2015AP1997-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity
Jeffrey Decker had been banned from the UW-Oshkosh, and was arrested when he arrived at a grand opening event. The arrest was not without incident and he was charged with obstructing an officer and convicted after a jury trial.
Ensuring automatic admissibility justified warrantless blood draw
State v. Melvin P. Vongvay, 2015AP1827-CR, District 2, 5/4/2016 (one-judge decision; ineligible for publication); case activity (including briefs)
Wisconsin Stat. § 885.235(1g) makes a blood alcohol test automatically admissible in a drunk driving prosecution if the blood is drawn within three hours of the alleged driving. The court here holds that an officer who was running up against the end of that three-hour window was justified in drawing blood without seeking a warrant.
As-applied constitutional challenges to TPR rejected
State v. G.H., 2015AP1606, District 1, 4/28/16 (one-judge decision; ineligible for publication); case activity
G.H.’s parental rights to M.R.H. were terminated on the grounds that M.R.H. remained in need of protection or services under § 48.415(2) and that G.H. had failed to assume parental responsibility under § 48.415(6). The court of appeals rejects his claims that these statutes are unconstitutional as applied to him.
Court of Appeals asks SCOW to decide how to raise claims that counsel at revocation hearing was ineffective
State ex rel. Antjuan Redmond v. Brian Foster, 2014AP2637, District 2, 4/27/16, certification granted 6/15/16, certification vacated and case returned to the court of appeals 9/15/16; case activity (including briefs)
Issue:
Whether an offender whose parole and extended supervision was revoked after a revocation hearing has an adequate remedy other than a writ of habeas corpus to pursue a claim that the attorney who represented him during the hearing rendered constitutionally ineffective assistance? Specifically, must the offender raise a claim of ineffective assistance of revocation counsel in a motion to the division of hearings and appeals (DHA) in the department of administration?
Dismissal of felon-in-possession charge doesn’t bar new charge under different provision of § 941.29
State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)
Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.
Challenges to sufficiency of evidence and self-defense instruction in reckless homicide case rejected
State v. Phillip Kareen Green, 2015AP1126-CR, 4/26/16, District 1 (not recommended for publication); case activity (including briefs)
Green argues that the evidence was insufficient to convict him of first degree reckless homicide because it didn’t prove he acted with utter disregard for human life. He also argues for a new trial in the interest of justice on the grounds that: 1) the jury wasn’t fully instructed about the interaction between self-defense and the utter disregard element; and 2) important facts were not introduced or placed in proper context. The court of appeals rejects Green’s claims in a decision heavy on facts and light on analysis.
Retrial barred because there was no manifest necessity for mistrial
State v. Russell C. Troka, 2016 WI App 35; case activity (including briefs)
Because the record does not reflect an adequate basis for a finding of manifest necessity warranting a mistrial over Troka’s objection, retrying Troka would violate his right against double jeopardy.
Defendant’s own misunderstanding about collateral consequence didn’t taint plea
State v. Miguel Angel Langarica, 2015AP1546, 4/21/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
Langarica’s misunderstanding about whether the conviction would require him to register as a sex offender under Illinois law doesn’t entitle him to withdraw his plea because he didn’t prove the misunderstanding was based on incorrect information from his trial lawyer.
5-6 sleepovers per week + 2 baskets of laundry = “resides” for purposes of domestic abuse surcharge law
State v. Donald Weso, 2015AP1004-Cr, 4/19/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
This unpublished opinion appears to decide an issue of first impression for Wisconsin. Section 973.055(1) requires a court to impose a $100 surcharge if it finds that an adult convicted of domestic abuse committed the act “against an adult with whom [he] resides. ” The novel question is: what does “resides” mean? The answer is only a little more involved than the title to this post suggests.
Waiver of juvenile court jurisdiction over 15-year-old upheld
State v. T.D.M., 2015AP2289, 4/20/16, District 2, (1-judge opinion; ineligible for publication); case activity
T.D.M. was charged with burglary and theft, as party to a crime, and obstructing an officer. The circuit court waived him into to adult court mostly because his “pattern of living” was more like an adult’s than a juvenile’s. That is, he was not reliant upon his mother for large periods of time. His whereabouts were unknown for at least 3 months in 2014. He allegedly had fathered a child. He did not attend school or avail himself of services. And he repeatedly violated curfew and came and went as he pleased. See ¶14.