On Point: 46. WI Court of Appeals

State v. Patrick K. Kozel, 2015AP656-CR, District 4, 11/12/15 (one-judge decision; ineligible for publication), petition for review granted 3/7/16, reversed, 2017 WI 3; case activity (including briefs)

The results of a blood draw done by an EMT after Kozel was arrested for OWI were inadmissible because the State failed to prove that the blood draw was conducted by a “person acting under the direction of a physician,” as required by § 343.305(5)(b).

State v. N.J., 2015AP1477 & 2015AP1478, District 1, 11/12/15 (one-judge decision; ineligible for publication); case activity

The order terminating N.J.’s parental rights based on her failure to assume parental responsibility under § 48.415(6) was not invalidated by any failures by the Milwaukee Child Welfare Bureau to make reasonable efforts to reunite N.J. with her two children.

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

State v. Jamie R. Anderson, 2015 WI App 92; case activity (including briefs)

Answering a question lingering since the Truth-in-Sentencing revisions that took effect in 2003 (TIS-II), the court of appeals holds that a person serving a bifurcated prison sentence for a misdemeanor enhanced under the repeater statute, § 939.62(1)(a), is eligible to petition for a sentence adjustment under § 973.195 after serving 75% of the confinement portion of the sentence.

State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)

This is one of those really fact-specific decisions.  The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.

State v. Mendell Stokes, 2015AP1335-CR, District 2, 11/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Applying State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), the court of appeals holds the record provided “competent proof” that Stokes was operating after revocation for a prior OWI offense and, thus, was subject to criminal penalties instead of a civil forfeiture, § 343.44(1)(b) and (2)(ar)2.

S.R. v. Circuit Court for Winnebago County, 2015 WI App 98; case activity

Because S.R. and C.L.’s “petition for determination of parentage” effectively asked the circuit court for a declaratory judgment about the meaning of Wisconsin’s parentage statutes in light of the cases holding that same-sex couples have a constitutional right to marry, the petition should have been served on the Attorney General. Because that didn’t happen, the circuit court lacked the competency to decide the petition.

State v. Colton M., 2015 WI App 94; case activity

Colton challenges his delinquency adjudication for repeated acts of sexual contact with a child under the age of 16 under § 948.025(1)(e), arguing that applying the statute to him violates due process because it provides insufficient standards for distinguishing him from D., the victim, as both were 15 years old and both engaged in sexual activity. Colton also argues that prosecuting him rather than D. violates equal protection. The court concludes that, under the facts of this case, the statute is sufficiently definite to satisfy due process and there was a rational basis for prosecuting Colton instead of D.

N.A.H. v. J.R.D., 2015AP1726, 2015AP1727, and 2015AP1728, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity (first case number)

The petition to terminate J.R.D.s parental rights set forth sufficient facts to support the allegation that J.R.D. had failed to assume parental responsibility.

State v. Joseph William Netzer, 2015AP213, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity

¶1     …. Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,