On Point blog, page 190 of 485
Weaving in lane twice during early morning hours justified traffic stop
City of Mequon v. Luke J. Chiarelli, 2015AP359, District 2, 10/14/15 (one-judge decision; ineligible for publication); case activity (including briefs)
There was reasonable suspicion to stop of Chiarell’s car based on two lane deviations during early morning hours and, based on observations the officer made after the stop, there was probable cause to arrest Chiarelli for OWI.
Open records law requires disclosure of videos of training presentations made by candidate for Attorney General
Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2014AP2536-FT, District 4/2, 10/14/15 (summary disposition; ineligible for publication, reversed, 2016 WI 100; case activity (including memo briefs)
While this decision is not citable, even for persuasive value, see Rule 809.23(3)(b), On Point thought it newsworthy enough to bring to our readers’ attention. Here’s the genesis of the case: Before the November 2014 election, the Democratic Party filed an open records request for videos of two training presentations made by Brad Schimel, the DA running for Attorney General. The Department of Justice denied the request, but a circuit judge ordered the videos to be released. The court of appeals affirms that order.
Termination of parental rights upheld without meaningful application of standard of review
State v. C.S., 2015AP1345, 10/13/15, District 1 (one-judge opinion, ineligible for publication); case activity
The court of appeals here carefully recites, and then affirms, circuit court findings that the termination of C.S.’s parental rights were in the best interests of her child, M.G. Its analysis, however, displays little regard for the standard of review.
Independent source, attenuation doctrines defeat claim for suppression of evidence found on computer in police custody
State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)
Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.
Defendant’s behavior counts against him for speedy trial purposes, but doesn’t show he was incompetent to represent himself
State v. Ennis Lee Brown, 2015AP522-CR, District 1, 10/9/15 (not recommended for publication); case activity (including briefs)
The 14½-month delay in trying Brown didn’t violate his right to a speedy trial, as “all of the delays are attributable to the defense, and most are attributable to Brown’s poor behavior and inability to work with his assigned counsel.” (¶56). At the same time, the trial court didn’t err in allowing Brown to proceed pro se at the start of trial, as Brown’s “poor behavior and inability to work with his assigned counsel” don’t show Brown was incompetent to represent himself.
Evidence was insufficient to support ch. 55 protective placement order
Clark County v. S.A.G., 2015AP793, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity
There was insufficient evidence for the protective placement order because the County failed to prove that S.A.G. suffers from a disability that is permanent or likely to be permanent, as required by § 55.08(1)(d).
Parent’s failure to cooperate with discovery and with her counsel justified default judgment in TPR proceeding
State v. L.M.-N., 2014AP2405 & 2014AP2406, District 1/4, 10/8/15 (one-judge decision; ineligible for publication); case activity
The circuit court properly entered a default judgment in L.M.-N.’s termination of parental rights proceeding based on her failure to appear at her scheduled deposition and, when she did finally appear, by refusing to testify.
Circuit court’s findings that driver made unexplained swerve into wrong lane were not clearly erroneous
State v. Mark Alan Tralmer, 2015AP715-CR, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court’s implicit rejection of Tralmer’s suppression hearing testimony and acceptance of the police officer’s contrary testimony were not clearly erroneous and therefore must be upheld on appeal, State v. Arias, 2008 WI 84, ¶12, 311 Wis. 2d 358, 752 N.W.2d 748. Accordingly, the circuit court properly concluded that the officer had reasonable suspicion to stop Tralmer for violating § 346.05(1) by swerving into the wrong lane of traffic when there is no obstruction requiring the driver to do so, as allowed under § 346.05(1)(d).
Revocation based on refusal to answer agent’s questions was invalid because of insufficient explanation about immunity
State ex rel. Rockie L. Douglas v. Brian Hayes, 2015 WI App 87; case activity (including briefs)
Douglas’s probation was improperly revoked based on his refusal to answer his probation agent’s inquiry about Douglas’s suspected involvement in various criminal activities while on probation because he was not sufficiently informed, prior to his refusal, that he had both use and derivative use immunity related to any information he would have provided the agent.
When defendant is misinformed that maximum sentence is less than allowed by law, commutation isn’t alternative remedy to plea withdrawal
State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)
In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37).