On Point: 46. WI Court of Appeals

State v. Omar F. Ofarril-Valez, 2010AP3109-CR, District 1, 6/21/11

court of appeals decision (1-judge, not for publication); for Ofarril-Velez: Dustin C. Haskell, SPD, Milwaukee Appellate; case activity

The court marshals “nine indicia of impairment” to support its conclusion of probable cause to arrest: time (2:30 a.m.); driving 3-4 miles over posted limit; “light odor” of alcohol; admission of drinking 1 beer; glassy eyes; difficulty complying with instructions;

State v. Beverly H., 2011AP536, District 1, 6/21/11

court of appeals decision (1-judge, not for publication); for Beverly H.: Jeffrey W. Jensen; case activity

The trial court didn’t err in denying the parent’s request for an adjournment of dispositional hearing, following jury verdict finding grounds to terminate. The court of appeals rejects the argument that § 48.31(7)(a) controls the issue.

¶2        This Court disagrees with Beverly H.’s arguments on appeal. 

State v. Rodney A. Larson, 2011 WI App 106 (recommended for publication); for Larson: Chris Gramstrup; case activity

Prosecution for attempt rather than completed crime, §939.32, comes within the general limitation period in § 939.74(1). Therefore, although prosecution for homicide may be commenced at any time, § 939.74(2)(a), Larson’s prosecution for attempted first-degree intentional homicide had to be commenced within 6 years, and must be dismissed as untimely.

Sheboygan County DH&HS v. Wesley M., No. 2010AP2946, District 2, 6/15/11

court of appeals decision (1-judge, not for publication); for Wesley M.: Leonard D. Kachinsky; case activity

¶7        A parent is entitled to the effective assistance of counsel in termination of parental rights proceedings, and the applicable standards are those which apply in criminal cases.  See A.S. v. State, 168 Wis.

Harlan Richards v. Graham, 2011 WI App 100(recommended for publication); for Richards: Kendall W. Harrison, Jennifer L. Gregor; case activity

Mootness Doctrine

Challenge to Parole Commission decision to increase deferment period from 10 to 12 months, and to Program Review Committee decision to increase security status, not rendered moot by subsequent parole and program hearings.

¶11      An issue is moot when a party seeks a determination that will have no practical effect on an existing legal controversy. 

State v. Anthony M. S., 2010AP1669, District 4, 6/9/11

court of appeals decision (1-judge, not for publication); for Anthony M.S.: Shelley Fite, SPD, Madison Appellate; case activity

The State sought to prove that the pills Anthony M.S. possessed were a non-narcotic controlled substance (Adderall), § 961.41(3g), through the testimony of the Osseo Police Chief that the website Drugs.com established the pills’ identity. The trial court found Anthony M.S.

Dane Co. DHS v. Jennifer F., 2011AP530, District 4, 6/9/11

court of appeals decision (1-judge, not for publication); for Jennifer F.: Paul G. LaZotte, SPD, Madison Appellate; case activity

Although the trial court erred in not taking testimony in support of no-contest pleas to the TPR petition as required by § 48.422(3) (see Waukesha County v. Steven H., 2000 WI 28, ¶56, 233 Wis.

State v. Francis A. Malsbury, 2010AP3112-CR, District 2, 6/8/11

court of appeals decision (1-judge, not for publication); for Malsbury: Andrew R. Walter; case activity

Prior conviction, in Washington state in 1999 for reckless driving amended from driving under the influence, qualified as a prior OWI and therefore subjected Malsbury to criminal prosecution.

¶7        We hold that Malsbury’s Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin’s accelerated OWI penalty structure.  

State v. Henry W., 2011AP693, District 1, 6/7/11

court of appeals decision (1-judge, not for publication); for Henry W.: Jane S. Earle; case activity

Testimony of a “bonding expert” as to how the child’s view of her father would make it difficult for him to meet conditions of return, was relevant and admissible in the grounds phase, ¶¶5-7, 10.

Trial court’s refusal to grant adjournment of dispositional phase so that father could secure his own bonding expert,

County of Brown v. Eric J. Schroeder, 2010AP2967, District 3, 6/7/11

court of appeals decision (1-judge, not for publication); for Schroeder: Dennis M. Melowski, Dennis M. Melowski; case activity

Following OWI arrest and blood test result over the limit, Schoeder’s license was administratively suspended. The police, however, failed to provide him with the form explaining the suspension review process, contrary to § 343.305(8)(am). Schroeder argues that this omission causes a loss of presumptive reliability of the blood test (which allows admission into evidence without expert testimony).