On Point blog, page 190 of 485
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State v. Ennis Lee Brown, 2015AP522-CR, District 1, 10/9/15 (not recommended for publication); case activity (including briefs)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).
Parental unfitness finding “necessarily flows” from finding there are grounds to terminate parental rights
A.N. v. F.S., 2015AP1405 & 2015AP1406, District 3, 10/2/15 (one-judge decision; ineligible for publication); case activity
A circuit court handling a TPR case is not required to make an explicit finding that a parent is unfit before proceeding to the dispositional phase because a finding of unfitness automatically follows from a finding there are grounds to terminate the parent’s rights.
Court commissioners not required to make verbatim record of Chapter 51 probable cause hearings
Dane County v. T.B., 2015AP799. 10/1/15, District 4 (1-judge opinion, ineligible for publication); case activity
T.B. sought to vacate an order for a Chapter 51 commitment on the grounds that the circuit court lost competency to proceed when it failed to make a verbatim record of his probable cause hearing per Wis. Stat. §51.20(5). According to the court appeals, SCR 71.01(2)(a) excepts from the reporting requirement proceedings before a court commissioner that may be reviewed de novo,
Sec. 752.31(2)(f) reimbursement provision applies only to count of conviction
State v. Barbara J. Thiry, 2015AP863-CR, 10/1/15, District 4 (1-judge decision; ineligible for publication); case activity
Here’s a defense win on an unusual issue. The State charged Thiry with 15 misdemeanor counts for mistreating 5 horses. A jury ultimately convicted her on just 1 count relating to 1 horse. She challenged a circuit court order requiring her to reimburse the county for the investigation expenses relating to all 5 of the horses it seized. The appeal hinged on the proper interpretation of Wis. Stat. §173.24.
Sec. 48.415(2)3 applies to CHIPS orders before parent has exhausted appellate rights
State v. E.P., 2015AP1298-1300, 10/1/15, District 1 (1-judge opinion, ineligible for publication); case activity
A jury found grounds to terminate E.P.’s parental rights because his kids were in continuing need of protective services. The court of appeals rejected E.P.’s arguments that § 48.415(2)’s “6 months or longer” period (i.e. the time a child has been placed outside the home per a CHIPS order) begins to run only after he exhausted his appellate rights. The court also declined to order a new trial in the interests of justice.