On Point blog, page 281 of 483

TPR – Default Judgment as to Grounds – Sufficiency of Evidence; § 48.415(6) – Constitutional Challenge, Vagueness

Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12

court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity

Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.

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Carrying Concealed Weapon: Definition of “Dangerous Weapon” re: “Operated by Force of Gunpowder”

State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity

Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under §  939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded,

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Reasonable Suspicion – Reliability of Information

State v. Anthony J. Wilson, 2011AP1782-CR, District 4, 2/16/12

court of appeals decision (1-judge, not for publication); for Wilson: Joseph F. Fischer; case activity

A known citizen-informant’s report of a hit-and-run collision he observed, including pointing out the vehicle as it fled the scene, was sufficiently reliable to support reasonable suspicion for a stop, notwithstanding an inaccurate detail in the report (the vehicle’s color).

¶24      While not controlling here, 

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Reasonable Suspicion – Collective Knowledge Doctrine; Traffic Stop – Report of Intoxicated Driver

State v. Sherri A. Wittrock, 2011AP1538-CR, District 2, 2/15/12

court of appeals decision (1-judge, not for publication); for Wittrock: Steven D. Grunder, SPD, Madison Appellate; case activity

¶7        Where, as here, an officer relies on information provided by dispatch, “reasonable suspicion is assessed by looking at the collective knowledge of police officers.”  See State v. Pickens, 2010 WI App 5,

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Reasonable Suspicion – Traffic Stop – Crossing Fog Line

State v. Jordan T. Griffith, 2011AP2226-CR, District 2, 2/15/12

court of appeals decision (1-judge, not for publication); for Griffith: Walter Arthur Piel, Jr.; case activity

¶5        In order for an investigatory stop to be justified by reasonable suspicion, the officer must have a “‘particularized and objective basis’ for suspecting the person stopped of criminal activity.”  State v. Walli, 2011 WI App 86,

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TPR – Grounds, Sufficiency of Evidence; TPR – Termination Phase, Exercise of Discretion

State v. Marquis O., 2011AP2642, District 1, 2/14/12

court of appeals decision (1-judge, not for publication); for Marquis O.: Carl W. Chessir; case activity

Grounds for terminating parental rights upheld, against argument that Bureau of Child Welfare didn’t make reasonable effort to provide services for Marquis O. to meet conditions for child’s return to him.

¶5        The termination of Marquis O.’s parental rights to Mariyana was based on the child’s having,

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State v. Gerald D. Taylor, 2011AP1030-CR, District 3/4, 2/9/12, review granted

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

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Issue Preclusion – OWI Enhancer; Foreign Conviction; Collateral Attack

State v. Michael A. Imbruglia, 2011AP1373-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); for Imbruglia: Rick Ramirez; case activity

In circuit court, Imbruglia successfully challenged use of a Colorado conviction as an OWI enhancer (on the ground that statute isn’t “substantially similar” to Wisconsin’s). However, after another OWI arrest the very next day, the State reasserted that same conviction to enhance the new charge.

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Violation of TRO, § 813.125

State v. James M. Johnson, 2011AP2374-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Evidence – Johnson left voicemail message on complainant’s work phone – held sufficient to sustain conviction for violating temporary restraining order.

¶8        Regarding the nature of the voice mail message and its violation of the TRO, the TRO itself states that Johnson is to “avoid contact that harasses or intimidates the petitioner,” contact defined as including contact by phone.  

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Interrogation – Scrupulously Honoring Right to Silence

State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12

court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity

Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.

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