On Point blog, page 199 of 485
Credible victim supports adjudication on one count, but trial court’s mistake of law invalidates adjudication on second count
State v. Arron A.-R., 2014AP142, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
Arron delinquency adjudication for one count of first degree sexual assault is supported by the testimony of the victim, S.F., but the adjudication for a second count is reversed because the trial court erred in believing that the charge required only sexual contact, not sexual intercourse.
Using therapist as part of defense against TPR petition waived therapist-patient privilege
State v. Mary G., 2015AP55, 2015AP56, & 2015AP57, District 1, 6/2/15 (one-judge decision; ineligible for publication); case activity
At the grounds phase of the trial on a TPR petition, the circuit court properly ordered Mary G. to provide the State with notes from her mental health treatment provider and appropriately considered evidence regarding Mary’s failure to manage her medications.
Exigent circumstances justified warrantless entry to hotel room
State v. Jeffrey F. Smart, 2014AP2604, District 2, 5/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The warrantless entry into Smart’s hotel room was supported by probable cause and justified by exigent circumstances because there was an objective basis to believe there was a risk to the safety of Smart’s children.
Imposition of DNA surcharge for every felony committed before January 1, 2014, violates ex post facto prohibition
State v. Gregory Mark Radaj, 2015 WI App 50; case activity (including briefs)
A defendant who committed a felony before the effective date of the law mandating a $250 DNA surcharge for each felony conviction, but who is sentenced after that effective date, cannot be made to pay the surcharge on each felony conviction because that violates the prohibition against ex post facto laws. Instead, the defendant may only be subject to a single discretionary surcharge of $250.
Mandatory DNA surcharge for certain misdemeanors violates ex post facto prohibition
State v. Garett T. Elward, 2015 WI App 51; case activity (including briefs)
Defendants who committed a misdemeanor offense before April 1, 2015 January 1, 2014, cannot be made to pay the mandatory $200 DNA surcharge that is supposed to be imposed for each misdemeanor conviction beginning January 1, 2014, because imposition of the surcharge on that class of defendants violates the ex post facto clauses of the state and federal constitutions. [See UPDATE below regarding the date change.]
Statute authorizing hearsay at prelims doesn’t violate ex post facto prohibition
State v. David E. Hull, 2015 WI App 46; case activity (including briefs)
The recently enacted statute allowing the admission of hearsay evidence at preliminary hearings is not an unconstitutional ex post facto law because it affects only the evidence that may be admitted at the preliminary hearing and does not alter the quantum or nature of evidence necessary to convict the defendant. In addition, the court commissioner properly refused to allow Hull to call the alleged victim to testify at the preliminary hearing because the anticipated testimony was not relevant to the probable cause inquiry.
Defendant failed to show why he would have gone to trial but for counsel’s deficient performance
State v. Shaun M. Clarmont, 2014AP1043-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Even if trial counsel failed to investigate a defense to the charge to which Clarmont pled, Clarmont has not shown why he would have gone to trial and face the possibility of multiple convictions, including for two felony offenses, rather than accept a plea offer of a single misdemeanor conviction along with a very favorable sentencing recommendation from the state.
Restitution appropriate because defendant’s conduct during entire incident showed causal connection between crime and victim’s damages
State v. Chaz L. Brown, 2014AP1848-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)
A “midsummer night’s attempt at self-help debt collection” (¶2) led to Brown being charged with disorderly conduct and battery. He was acquitted of the battery charges based on his self-defense claim, but he was convicted of the DC. (¶¶2-5). Based on Brown’s conduct during the entire incident, there was sufficient evidence showing a causal connection between Brown’s DC and the battery victim’s damages to support the trial court’s restitution order.
IAC claims based on Confrontation Clause violation fail due to defendant’s forfeiture by wrongdoing
State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs
Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.
Victim’s inconsistent testimony didn’t make testimony inherently or patently incredible
State v. Brandon L. P-D., 2014AP2785, District 4, 5/14/15 (one-judge decision; ineligible for publication); case activity
The court of appeals rejects Brandon’s arguments that the evidence was insufficient to support his delinquency adjudication for incest because of the victim’s inconsistent testimony. The court also rejects his arguments that the circuit court erred in denying his motion for in camera review of the victmi’s medical records and in excluding evidence of a previous sexual assault of the victim.