On Point: 46. WI Court of Appeals

State v. Justin L. Garrett, Case No. 12AP1341-CR, District 2, 12/19/12

Court of appeals decision (1 judge; ineligible for publication); case activity

Garrett failed to make a prima facie showing that his plea colloquy was defective, so his motion to withdraw plea was properly denied without an evidentiary hearing:

¶10      Garrett argues that he did not understand the meaning of the specific elements of the charge of fourth-degree sexual assault: sexual contact and consent.  

State v. Mark A. Sanders, 2013 WI App 4; case activity

Search incident to arrest — area within arrestee’s “immediate control”

Search of bed in room from which defendant emerged just before being arrested upheld under Chimel v. California, 395 U.S. 752 (1969), which permits an arresting officer to search the person arrested and the area within the arrestee’s “immediate control” in order to prevent the destruction of evidence of the crime and protect officers’ safety.

Milwaukee County v. Cheri V., 2012AP1737, District 1, 12/18/12

 court of appeals decision (1-judge, ineligible for publication); case activity

Mental health commitment, § 51.20, requires proof of mental illness and dangerousness. Cheri V. limits this challenge to the latter; the court agrees:

¶7        As seen from our recitation of the facts adduced at the trial, however, there is absolutely no evidence that any of the statutory prerequisites were met—yelling at and pointing a finger at another person,

State v. Dylan T.W., 2012AP1761-FT, District 2, 12/12/12

court of appeals decision (1 judge; ineligible for publication); case activity

Evidence held sufficient to support delinquency adjudication for felony battery where juvenile pushed a whiteboard into a teacher and then injured the same teacher by forcefully opening a door in the teacher’s path. Arguments the juvenile was not aware of the consequences of his actions because he was “singularly focused on leaving the classroom” and that there was conflicting evidence of the event,

State v. Mark A. Gierczak, 2012AP965-CR, District 4, 12/13/12

court of appeals decision (1 judge; ineligible for publication); case activity

For purposes of obstructing an officer § 946.41, “officer” includes someone with authority “to take another into custody,” and therefore includes a correctional officer at a county jail, ¶¶11-12. The court of appeals thus rejects Gierczak’s challenge to the factual basis for his obstructing plea where as a county jail inmate,

State v. David J. Galarowicz, 2012AP933-CR, District 3, 12/11/12

court of appeals decision (1 judge; not eligible for publication); case activity

Galarowicz was not denied his right to a unanimous jury verdict on one count of disorderly conduct where the evidence showed an incident of disorderly conduct with the victim in the residence and additional conduct with the same victim in the residence after a twenty-minute pause. 

State v. Alexander Jerome Wiley, 2012AP71-CR, District 1, 12/11/12

court of appeals decision (3 judge; not recommended for publication); case activity

Wiley, a co-defendant in a reckless homicide case, moved the circuit court to exclude the in-court identification testimony of an eyewitness to the crime who had picked Wiley out of a photo array. He argued that the in-court identification was tainted because the photo array was unduly suggestive. 

State v. Brandon H. Bentdahl, 2012AP1426, District 4, 12/6/12; court of appeals decision (1-judge, ineligible for publication), petition for review granted 6/13/13; reversed, 2013 WI 106; case activity

A circuit court has discretionary authority to dismiss a refusal charge, § 343.305, after the defendant has pleaded guilty to the underlying OWI, State v. Brooks,

State v. Robert Edwin Burkhardt, 2009AP2174-CR, District 1/4, 12/6/12

court of appeals decision (not recommended for publication); case activity

Search & Seizure – Consent 

Consent to search isn’t vitiated by nonpretextual threat to obtain a search warrant:

¶16      … (I)t is well established that, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission.’”  Artic,

court of appeals certification request; certification granted 2/25/13; case activity (Seaton); case activity (Pinno)

Issue Presented (from Certification): 

Is the failure to object to the closure of a public trial to be analyzed upon appellate review under the “forfeiture standard” or the “waiver standard”?

As suggested, in each of these consolidated cases the trial judge barred the public from the courtroom (during jury selection in each instance),