On Point blog, page 203 of 484
Homicide conviction affirmed based on harmless error
State v. Eduardo Ivanez, 2013AP1901-CR, 2/26/15, District 1 (not recommended for publication); click here for briefs
Ivanez appealed his conviction for 1st-degree intentional homicide and hiding a corpse on the grounds that statements he made to the police should have been suppressed and the admission of those statements impelled him to testify that he killed the victim in self-defense, a dubious trial strategy. The court of appeals assumed, without deciding, that the trial court had erred but affirmed under the harmless error doctrine.
Leaving messages with foster parents does not qualify as “communicating with a child” under TPR statute
Dane County DHS v. Hershula B., 2014AP2076, 2/26/15, District 4 (one-judge opinion, ineligible for publication); click here for docket
Hershula appealed an order terminating her parental rights. She argued that the trial court erred in directing a verdict on the abandonment issue because she presented evidence that she had communicated indirectly with her child. The court of appeals held that the phrase “communicate with the child” requires that the child share in the action of communicating with the parent. Slip op. ¶22. Indirect communications don’t count.
Officer’s statement about authority to search car didn’t taint driver’s consent to search of his person
State v. David M. Wagner, 2014AP842-CR, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity (including briefs)
Wagner voluntarily consented to a search of his person, and was not merely “[a]cquiesc[ing] to an unlawful assertion of police authority,” State v. Johnson, 2007 WI 32, 16, 299 Wis. 2d 675, 729 N.W.2d 182, when he agreed to the search on the heels of the officer’s assertion of authority to search Wagner’s car.
“Statutes need to be complied with,” and failure to comply with § 55.10(2) deprived circuit court of competency to proceed
Sheboygan County v. Christopher A.G., 2014AP2489, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity
The circuit court erred in holding a due process hearing on Christopher’s protective placement without Christopher’s physical presence and without the guardian ad litem (GAL) waiving his attendance in writing prior to the hearing as required by § 55.10(2) and Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450.
Performance not deficient where counsel promised defendant would testify but didn’t call him
State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket
During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.
Instructing jury on permissive presumption of OWI was A-ok
County of Taylor v. Dean T. Woyak, 2104AP1463, 2/24/15, District 3 (one-judge opinion, ineligible for publication); click here for briefs
Woyak was convicted of OWI and PAC. He had driven into a ditch and was discovered with beer cans littering his car. He claimed that he drank the alcohol that resulted in a .222 BAC after the accident not before or during driving. Thus, the trial court should not have instructed the jury that it could find him intoxicated based on the results of an alcohol-concentration test performed within 3 hours of driving.
Restitution appropriate where victim’s injuries could have been caused by conduct for which defendant was convicted or by conduct for which he was acquitted
State v. Richard J. Nelson, 2014AP1794-CR, District 3, 2/24/15 (one-judge decision; ineligible for publication); case activity (including briefs)
While the victim’s injuries could have been caused by the alleged conduct for which Nelson was acquitted, they could also have been the result of the conduct for which Nelson was convicted. Thus, there was a basis for finding a causal connection between Nelson’s conduct and the injuries and the circuit court properly ordered restitution.
Proceeding to sentencing despite misunderstanding about plea agreement defeats claims for plea withdrawal, resentencing
State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)
A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.
Stop based on traffic violation, FSTs, and PBT upheld
State v. Frederick C. Thomas, III, 2014AP816-818, 2/19/15, District 4 (1-judge opinion; ineligible for publication); click here for briefs
Thomas was convicted of OWI, operating a car with a prohibited alcohol concentration, unsafe lane deviation, and failure to signal a turn. He challenged the stop, the extension of the stop to conduct field sobriety tests, and the administration of the preliminary breath test. The circuit court denied suppression, and the court of appeals affirmed.
Evidence sufficient to show person would be proper subject for commitment if treatment were withdrawn
Milwaukee County v. Aaron B., 2014AP2008-FT, 2/18/15, District 1 (1-judge opinion; ineligible for publication); case activity
Aaron was deemed mentally ill and committed for 2 months under Chapter 51 when he bit off his caregiver’s ear. Afterwards, the county asked to extend his commitment under §51.20(13(g). Based upon statements from Aaron’s treating psychologists, the circuit court agreed and the court of appeals affirmed.
Aaron certainly improved on medication,