On Point blog, page 256 of 485
OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state
Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity
Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.
The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,
Ineffective assistance of counsel — failure to present evidence, ineffective cross examination. Privileges — Confidential informant, § 905.10(3)(b); disclosure of informant
State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of counsel — failure to present evidence, ineffective cross examination
In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses.
Guilty plea — factual basis; value of stolen property; breach of the plea agreement
State v. Lisa A. Brabazon, 2012AP1171-CR, District 4, 3/28/13; court of appeals decision (not recommended for publication); case activity
Guilty plea — factual basis; value of stolen property
The victim’s statements as to the value of the stolen property (which were set forth in the complaint) provided a sufficient factual basis for concluding that the value exceeded the $5,000 threshold for felony theft:
¶19 ….
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy with defendant; ineffective assistance of counsel
State v. Mark J. Libecki, 2013 WI App 49; case activity
Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy
In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,
Probation – increase in length of term based on crime being an act of domestic abuse; notice of potential increase; factual basis for finding the act constituted domestic abuse
State v. John R. Edwards, 2013 WI App 51; case activity
The longer period of probation applicable to a misdemeanor act of domestic abuse under Wis. Stat. § 973.09(2)(a)1.b. may be ordered even though the charging documents did not allege the crime was an act of domestic abuse.
Edwards was charged with substantial battery, strangulation and suffocation, and disorderly conduct based on an incident with his live-in girlfriend.
Traffic stop – reasonable suspicion based on speed
State v. Marvin L. Dillman, 2012AP865-CR, District 2, 3/27/13; court of appeals decision (1-judge, ineligible for publication); case activity
Police officer had reasonable suspicion to stop truck which she first saw “sideways” on the road and then observed accelerate quickly toward the curb before correcting itself and speeding away so quickly it required her to accelerate her squad car to 50 m.p.h. over three or four blocks to catch up:
¶7 Kollmann witnessed Dillman’s truck sideways in the roadway and then travel at a speed in excess of the speed limit.
Statute of limitations, § 939.74(1) — sufficiency of “John Doe” complaint’s identification of defendant for purposes of tolling statute of limitations; denial of right to self-representation or to substitution of counsel
State v. Rodney Washington, 2012AP1015-CR, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity
Statute of limitations, § 939.74(1) — sufficiency of “John Doe” complaint’s identification of defendant for purposes of tolling statute of limitations
The crimes in this case—sexual assault and robbery—were alleged to have occurred in 1994 and 1995. In 2000, eleven days before the statute of limitations was to run,
Postconviction motion under § 974.06 – denial of hearing where record conclusively shows no basis for relief
State v. Romey J. Hodges, 2012AP1330, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity
The circuit court properly denied Hodges’s § 974.06 motion alleging that trial counsel was ineffective for failing to investigate, and properly advise Hodges regarding, a self defense claim. Based on the record Hodges has not shown his actions were reasonable self-defense; it is also clear from the record trial counsel knew the law of self-defense and gave Hodges effective representation.
Search of home — apparent authority to consent; scope of consent; plain view
State v. Royce Markel Wheeler, 2013 WI App 53; case activity
Police went to a duplex in response to domestic abuse complaint from what they believed was the lower unit, with the caller saying she had been assaulted and was bleeding. (¶¶2, 4-6). After officers spent some 20 minutes knocking on the duplex’s common front door and yelling, a woman named Bates opened the door, saying she lived in the upper unit.
Miranda violation — interrogation by police; sentencing — erroneous exercise of discretion
State v. Antoine Leshawn Douglas, 2013 WI App 52; case activity
Miranda violation — interrogation by police
After a lawful arrest, but before being given Miranda warnings, Douglas initiated a conversation with the arresting officer in which he stated he wanted “to work” for the police by offering information about some marijuana dealers. After the officer declined that offer there was a “pause,” followed by Douglas changing the subject and volunteering information about a gun;