On Point blog, page 236 of 483
Court rejects argument that waiver of counsel was involuntary because it was not “free from financial constraint”
State v. Gregory Garro, 2013AP342-CR, District 1, 12/27/13; court of appeals decision (not recommended for publication); case activity
Garro waived the right to counsel before trial after two retained lawyers withdrew because he couldn’t pay them. (3). Garro told the court he couldn’t afford the fees quoted by the lawyers, but did have some money to hire counsel. (4). After being given time to look for a lawyer he could afford,
Do dentures distort breathalyzer test results?
State v. Mark K. Schrick, 2013AP1166-CR, District 4, 12/27/13 (1-judge decision, ineligible for publication); case activity
Actually, this case concerns more than just dentures. A jury convicted Schrick of operating a vehicle with a prohibited alcohol concentration in violation of §346.63(1)(b). On appeal, Schrick challenged (1) the trial court’s decision to deny his motion for a directed verdict, (2) the sufficiency of the evidence supporting his conviction, and (3) a jury instruction saying that by statute the administered breath test was considered accurate.
Failure to object forfeits error in TPR case and prevents showing of harmful error
Barron County DH&HS v. Tara H., 2013AP2250, District 3, 12/27/13, unpublished; case activity
This is Tara H.’s 2nd trip to the court of appeals regarding this TPR. The first time she won a new dispositional hearing. At the start of that 2nd dispositional hearing, Tara’s counsel asked the trial court about the relevant time period for determining whether termination of her parental rights was in her son’s best interests.
Car in a ditch provides reasonable suspicion that traffic violation occurred
State v. David Lawrence Eastman, 2013AP1401-CR, District 3 (1-judge decision; ineligible for publication); case activity
A police officer may conduct a traffic stop when he has grounds to reasonably suspect that either a crime or a traffic violation has or will be committed. See State v. Popke, 2009 WI 37, ¶23, 317 Wis. 2d 118, 765 N.W.2d 569; State v.
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.
Capitol rotunda singer gets civil pre-trial discovery in State’s action to collect forfeiture
State v. Anica C. C. Bausch, 2014 WI App 12; case activity
Bausch participated in a “Solidarity Sing Along” at the State Capitol in the fall of 2012. The Capitol Police cited her for violating Wis. Admin. Code ADM sec. 2.14(2)(v). Bausch pled “not guilty” and served the State with requests for admissions, interrogatories, and production of documents. The State responded with a “Motion in Opposition to Application of Civil Discovery.”
Drive-through employee’s observation and tip provide reasonable suspicion for OWI stop
State v. Mary J. Kamuchey, 2013 AP1684-CR, District 4, 12/19/13 (1-judge opinion; ineligible for publication); case activity
Issue: Whether an anonymous “citizen informant’s” call from a McDonald’s drive-through at 2:00 a.m., describing an argumentative driver who smelled of alcohol and was believed to be drunk, provided reasonable suspicion for OWI stop even though the officer who made the stop did not observe signs of erratic driving or intoxication?
Trial counsel was not ineffective for failing to argue officers in resisting arrest case acted without lawful authority
State v. Andrew K. Valiquette, 2013AP909-CR, District 4, 12/19/13; court of appeals decision (1-judge; ineligible for publication); case activity
Valiquette, convicted of resisting arrest, argues the police lacked lawful authority when they moved to pat him down for weapons, and asserts trial counsel’s failure to pursue that defense was based on a misunderstanding of the applicable law. The court of appeals disagrees, concluding instead that trial counsel’s testimony indicates she made a strategic decision to focus on the issue of whether Valiquette resisted instead of whether the police were acting with lawful authority.
Grant of continuance under speedy trial statute also continued deadline for trial under Intrastate Detainer Act
State v. Malcolm A. Butler, 2014 WI App 4; case activity
The 120-day deadline for trying a case under the Intrastate Detainer Act, § 971.11(2), is explicitly “subject to” the speedy trial statute, § 971.10; thus, the Intrastate Detainer Act incorporates the provision of the speedy trial statute that allows for continuances for good cause, § 971.10(3)(a), and those continuances may go beyond the 120-day deadline.
Court to State: Ends of adult court jurisdiction don’t justify means violating juvenile code
State v. Cody Phillips, 2014 WI App 3; case activity
This case reached the court of appeals via a petition for leave to appeal a non-final order.
The State’s juvenile delinquency petition alleged that Phillips committed one count of 1st-dgree sexual assault of child by use or threat of force and a second count of 2nd-degree assault of a child. At the State’s request, the juvenile court waived Phillips into adult court on both counts and ultimately pled no contest to two counts of 2nd-degree sexual assault of a child.