On Point blog, page 205 of 485
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State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket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,
Failure to negotiate conditions of ERP eligiblity precludes claim for breach of plea bargain
State v. Johnny E. Miller, 2014AP1392-CR, 2/18/05, District 2 (1-judge opinion, ineligible for publication); case activity
Miller argued that the State breached its plea agreement with him when, at sentencing, it recommended that he be eligible for the Earned Release Program only after he served a specified period of prison time. The State, he claimed, impermissibly advocated a harsher sentence than recommended. The court of appeals rejected Miller’s argument because he and the State simply “did not have any agreement as to ERP eligibility.”
Court of appeals affirms suppression; sees one-shot-sized container exception to Gant
State v. Miranda K. Hinderman, 2014AP1787-CR, 2/12/15, District 4 (one-judge opinion; ineligible for publication); click here for briefs
Just because police had grounds to arrest Hinderman for OWI didn’t mean that they also had reason to believe that evidence relating to the OWI might be found in a 3″x3″ pouch inside her purse, inside her car, where they happened to find marijuana and drug paraphernalia.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.
After lawful arrest for OWI, police may search car for more evidence
State v. Darrell G. Lewis, 2014AP2289-CR, 2/12/14; District 4 (one-judge opinion, ineligible for publication); click here for briefs
After arresting Lewis for OWI, police searched his car and found marijuana. Lewis moved to suppress based on Arizona v. Gant, 556 U.S. 332 (2009), which permits a warrantless search of a car and containers within incident to arrest when it is reasonable to believe evidence relevant to the crime might be found there. Lewis lost his motion and appeal.