On Point blog, page 232 of 485
Defendant failed to prove her panic attack justified pre-sentencing plea withdrawal
State v. Gabriella Bernabei, 2013AP1734-CR & 2013AP1735-CR, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1734-CR; 2013AP1735-CR
The trial court properly denied Bernabei’s motion to withdraw her pleas before sentencing because the record supported its conclusion that she had not proven she was suffering a panic attack at the time she entered her pleas.
Bernabei was charged with child neglect and multiple counts of animal mistreatment.
No error in failure to give instructions on lesser included homicide charges where defendant’s trial testimony didn’t support them
State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity
The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:
¶14 The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses.
Conviction under § 947.01 for “violent, abusive and otherwise disorderly conduct” qualified as a “misdemeanor crime of domestic violence”
Robert W. Evans, Jr., v. Wisconsin Dep’t of Justice, 2014 WI App 31, overruled by Doubek v. Kaul, 2022 WI 31; case activity
A conviction for disorderly conduct under § 947.01 may qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A), thus depriving the defendant of the right to possess a firearm.
Evans’s application for a permit to carry a concealed weapon was denied after DOJ concluded his 2002 disorderly conduct conviction qualified as a “misdemeanor crime of domestic violence.”
Allowing testimony of foster parent at TPR grounds hearing was not improper
Wood County Human Services Dep’t v. Melanie M., 2013AP2814, 2013AP2815, & 2013AP2816, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP2814; 2013AP2815; 2013AP2816
Foster parent testimony during the grounds phase of a TPR proceeding has the potential to be prejudicial because it creates a risk the jury will reach a verdict by comparing the biological parent to the foster parent;
Officer’s approaching person on street and engaging him in conversation wasn’t a seizure
State v. Keith R. Friederick, 2013AP1609, District 4, 2/27/14; court of appeals decision (1-judge; ineligible for publication); case activity
Friederick was not seized by officer who approached him on the street and said sought to talk to him, applying United States v. Mendenhall, 446 U.S. 544 (1980), along with State v. Griffith, 2000 WI 72, ¶53, 236 Wis.
Good-bye to Gerondale: Enhanced misdemeanor sentences are governed by the basic 75% and 25% rules
State v. Lee Thomas Lasanske, 2014 WI App 26; case activity
In a decision that may finally settle the issue of how to bifurcate enhanced misdemeanor sentences, the court of appeals holds that § 973.01(2)(c)1.’s prohibition against using an enhancer to increase a period of extended supervision does not apply to enhanced misdemeanor sentences. Instead, enhanced misdemeanor sentences are subject to the basic rules that the confinement portion of a bifurcated sentence may not exceed 75% of the total sentence,
Even if field sobriety tests constitute a “search” under the Fourth Amendment, police may request them based on reasonable suspicion of impairment
Village of Little Chute v. Ronald A. Rosin, 2013AP2536, District 3, 2/25/14; court of appeals decision (1-judge; ineligible for publication); case activity
Rosin argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12).
Good-faith exception to exclusionary rule precludes suppression of results of warrantless blood draw that was unlawful under Missouri v. McNeely
State v. William A. Reese, 2014 WI App 27; case activity
The results of a driver’s blood test should not be suppressed even if they were obtained without a warrant and in the absence of exigent circumstances in violation of Missouri v. McNeely, 133 S. Ct. 1552 (2013), because the arresting officer acted in good faith reliance on established Wisconsin Supreme Court precedent at the time the blood draw was conducted.
Presenting testimony of supervisor of analyst who tested blood sample instead of analyst herself didn’t violate Confrontation Clause
State v. Michael R. Griep, 2014 WI App 25, petition for review granted, 8/5/14, affirmed, 2015 WI 40; case activity
Griep’s right to confront the witnesses against him was not violated by allowing the supervisor of an unavailable lab analyst to testify to his opinion about the defendant’s BAC based entirely on the report prepared by the unavailable analyst.
Committed sex offender entitled to discharge hearing based on re-evaluation with updated actuarial
State v. Herbert O. Richard, 2014 WI App 28; case activity
Richard is entitled to an evidentiary hearing on his petition for discharge because the independent psychologist’s opinion that amendments to the Static-99 show Richard’s risk to reoffend is below the legal threshold constitutes a fact on which a court or jury may conclude that Richard does not meet the criteria for commitment as a sexually violent person,