On Point: 46. WI Court of Appeals

State v. Michael D. Carroll, 2012 WI App 83 (recommended for publication); case activity

Repeal of ability to earn “positive adjustment time” wasn’t highly relevant to Carroll’s sentence, therefore didn’t constitute a new factor that could support sentence modification.

¶9        Because 2011 Wis. Act 38 did not become effective until more than a year after Carroll’s sentencing hearing, it is obvious that the sentencing judge could not have known about the repeal at the time of sentencing.  

Village of Elm Grove v. Richard K. Brefka, 2011AP2888, District 1/2, 6/19/12, WSC review granted 11/14/12

court of appeals decision (1-judge, ineligible for publication), supreme court review granted 11/14/12; case activity

The municipal court lacks competence to extend the 10-day time deadline for requesting a refusal hearings, given the clear language of §§ 343.305(9)(a)4. and (10)(a). Village of Butler v.

State v. Jerred Renard Washington / Jerred Renard Washington v. State, 2012 WI App 74 (recommended for publication); case activity (974.06); case activity (writ)

Habeas (Knight Petition) – Laches 

Following his plea-based conviction in 1997, Washington’s retained counsel filed a postconviction 809.30 motion in 1998. Counsel did not file a notice of appeal, however, after the motion was denied. Then, in 2009,

State v. Matthew J. Laughrin, 2011AP1600-CR, District 1, 6/12/12

court of appeals decision (not recommended for publication); case activity

Laughrin, after pleading guilty to second-degree reckless homicide for providing a controlled substance (Suboxone) to someone who died after ingesting it, sought pre-sentencing plea-withdrawal on the basis of an expert’s report that Suboxone alone generally doesn’t cause death. The trial court denied the motion, and the court of appeals now affirms.

State v. Elbert H., 2012AP446 / State v. Stacee P., 2012AP169, District 1, 6/12/12

court of appeals decision (1-judge, ineligible for publication); for Elbert H.: Devon M. Lee, SPD, Madison Appellate; case activity; for Stacee P.: Gregory Bates; case activity

The relevant agency’s responsibility to make a reasonable effort to provide court-ordered services encompasses post-petition activity:

¶8        Stacee P.’s contention that the proof of “reasonable effort” are limited to activities antedating the petition is belied by the statute,

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”

State v. Daniel Lee Rueden, Jr., 2011AP001034-CR, District 4, 6/7/12

court of appeals decision (not recommended for publication); for Rueden: Eileen A. Hirsch, Kaitlin A. Lamb, SPD; case activity

Felon-in-possession, § 941.29, is not unconstitutional either facially or as applied in this instance; State v. Pocian, 2012 WI App 58, deemed controlling.

¶6        We need not discuss the specifics of Rueden’s facial and as-applied challenges because,

State v. Alexander Velazquez-Perez, 2010AP001128-CR, District 1/4, 6/7/12

court of appeals decision (not recommended for publication); for Velazquez-Perez: David Leeper; case activity

The court of appeals has authority to extend the deadline for filing a postconviction motion; Velazquez-Perez filed his motion within the deadline as extended by the court of appeals, and jurisdiction attached over appeal of the subsequent denial:

¶19      We conclude we have jurisdiction over the plea withdrawal court’s May 2,

MaryBeth Lipp v. Outagamie County Dept. of Health and Human Services, 2011AP152, District 3, 6/5/12

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

Failure to decide a guardianship petition within the statutorily mandated 90 days of filing (§ 54.44(1)) caused the trial court to lose competency to proceed. Lack of objection didn’t waive the issue, ¶¶11-12, citing Village of Trempealeau v. Mikrut,

State v. Wayne P. Harris, 2012 wI App 79(recommended for publication); for Harris:  Attorney Gary Grass; case activity

We know that “[a] defendant has a due process right to be sentenced based on accurate information.”  See State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1  But what happens when the sentencing court relies upon a DOC-prepared revocation summary that is “technically true but misleading” or that is “written in a way that that invite[s] the court to draw negative inferences”?