On Point blog, page 245 of 483
Dog sniff and search of car were unlawful because officer unreasonably extended the duration of the stop
State v. Kenneth C. House, 2013 WI App 111; case activity
House was stopped for operating with a suspended registration. After running House’s license and learning he was on probation for a drug offense, the officer returned House’s license and issued him a warning for the suspended registration. The officer then retrieved his police dog who, after sniffing around the vehicle, alerted on the driver and passenger doors.
Sentencing — exercise of discretion in denying eligibility for ERP
State v. Brandon M. Pokey, 2012AP2412-CR, District 2, 8/14/13; court of appeals decision (not recommended for publication); case activity
The sentencing court did not erroneously exercise its discretion when it made Pokey, who was convicted of armed robbery of a bank, ineligible for the Earned Release Program. At sentencing the court based its decision on all of the required sentencing factors, not just on the seriousness of the offense,
OWI — probable cause to arrest without field sobriety tests
State v. Scott E. Bartelt, 2013AP110-CR, District 2, 8/14/13; court of appeals decision (1-judge; ineligible for publication); case activity
¶1 …. During his investigation of a bar fight, a village of Butler police officer came to the conclusion that Bartelt should not drive home and offered to give him a ride. Bartelt declined the ride, told the officer he would walk home, and walked away. Not twenty minutes later,
Sufficiency of evidence — bail jumping; stipulation to bail status. Self-defense — failure to ask for instruction
State v. Adrian Castaneda, 2012AP1596-CR, District 1, 8/13/13; court of appeals decision (not recommended for publication); case activity
Sufficiency of evidence to support felony bail jumping conviction
The state and the defense stipulated to the fact that Castaneda had been charged with a felony and agreed the jury would be told only that Castaneda had committed a “crime.” (¶¶3-4, 7-9). A proposed instruction that defined a “crime”
Judicial bias — sentencing after revocation
State v. Anthony M. Teller, Jr., 2013AP502-CR, District 3, 8/13/13; court of appeals decision (1-judge; ineligible for publication); case activity
The sentencing court exhibited objective bias in the form of the appearance of bias based on its statements at the original sentencing hearing:
¶21 …. The court told Teller he had “bad news” in the form of “a two-year prison sentence coming [his] way,” and, if he came back to court,
Ineffective assistance of counsel — inadequate presentation of defense of misidentification
State v. William M. Grunwald, 2012AP2531-CR, District 4, 8/8/13; court of appeals decision (not recommended for publication); case activity
Grunwald was charged with reckless endangerment for kicking Stevens, who was lying on the ground after being beaten by Houghton. Grunwald’s defense at trial was that he was mistakenly identified by eyewitnesses to the incident. After his conviction he alleged trial counsel was ineffective in his presentation of the defense,
Plea withdrawal granted because bargain was “illusory”
State v. Myron C. Dillard, 2013 WI App 108, petition for review granted, 2/19/14, affirmed, 2014 WI 123; case activity
Dillard accepted a plea bargain under which a persistent repeater allegation was dismissed, thus apparently reducing his maximum penalty exposure by avoiding a mandatory life sentence without prospect of release. But Dillard was not really subject to the persistent repeater law,
Evidence was insufficient to establish lack of competency to refuse medication
Winnebago County v. Donna H., 2013AP80, District 2, 7/31/13; court of appeals decision (1-judge; ineligible for publication); case activity
Applying the supreme court’s recent decision in Outagamie County v. Melanie L., 2013 WI 67, the court of appeals concludes Winnebago County failed to show Donna H. is not competent to refuse medication. The applicable statute, § 55.14(1)(b), requires the County to show that the advantages and disadvantages of accepting medication have been explained to the individual subject to a possible involuntary medication order.
TPR — sufficiency of evidence establishing parent would not meet conditions for return of children
State v. Shipria C., 2013AP637, 2013AP638, & 2013AP639, District 1, 8/6/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP637; 2013AP638; 2013AP639
In a fact-intensive decision, the court of appeals rejects Shipria C.’s argument that the evidence was insufficient to prove she would not meet the court-ordered conditions for the return of her children within nine months of the fact-finding hearing.
TPR — propriety of summary judgment in cases alleging abandonment
Dane County DHS v. Wesley J., 2013AP1226, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, does not erect a general bar to summary judgment in TPR cases alleging abandonment as the grounds for termination:
¶15 I disagree with Wesley’s assertion that Steven V.