On Point blog, page 191 of 488
E pluribus unum: Court of Appeals addresses notice, unanimity, venue and statute of limitations issues arising from charging multiple thefts in a single count
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.
Inmates serving bifurcated sentence for a misdemeanor may petition for sentence adjustment
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.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
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.
Record as a whole supplied “competent proof” of prior OWI conviction
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.
Court lost competency to decide constitutional challenge to statute due to failure to notify AG of challenge
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.
Child sexual assault statute survives as-applied vagueness, equal protection challenges
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.
TPR petition gave parent sufficient notice of grounds for termination
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.
Multiple challenges to OWI 1st rejected
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,
Forfeiture of co-owner’s interest in car violated Eighth Amendment’s excessive fine prohibition
State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)
While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.
When car has multiple owners, the fact that one owner has invalid license doesn’t by itself justify traffic stop
State v. Joshua Allan Vitek, 2015AP421-CR, District 3, 10/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, police may reasonably assume the driver of a car is likely to be the owner, and may stop the car if they know the owner’s operating privileges are invalid. But what if more than one person owns the car, but only one of the owners has an invalid license? The state claims that a traffic stop is still justified by the fact that one of the owners has an invalid license. The court of appeals disagrees, at least when—as in this case—the state presents no evidence as to the number of registered owners and the validity of their operating privileges.