On Point: 46. WI Court of Appeals

State v. LaDonna E., 2010AP1733, District 1, 12/7/10

court of appeals decision (1-judge, not for publication); for LaDonna E.: Jane S. Earle

Termination of parental rights upheld. Mother (LaDonna E.), after defaulting on grounds phase, challenged termination on basis that child’s aunt, who had custody and wanted to adopt child, should be appointed guardian instead.

¶9        The circuit court noted that “Kenny will be adopted.”  See Wis.

State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10

court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply

Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis.

Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate

Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed.

¶5        A determination that a person “is incompetent … is as difficult a judgment as a judge is called upon to make,” and thus the legislature has adopted procedural requirements “to mitigate the chances of error.”  Byrn v.

State v. Raymond Allen Nickel, 2010 WI App 161 (recommended for publication); pro se; State Resp.; Robert R. Henak, WACDL, Amicus Brief

Nickel’s challenge to his DNA surcharge was untimely, because made outside the direct appeal time limits:

¶5        When a defendant moves to vacate a DNA surcharge, the defendant seeks sentence modification.  Pursuant to WIS. STAT. § 973.19, a defendant may move for sentence modification within ninety days after sentencing.  

State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10

court of appeals decision (1-judge, not for publication)

The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another.

¶9        The language at issue is unambiguous as applied to the facts in this case.  The subsection prohibits “an indecent act of sexual gratification with another with knowledge that they are in the presence of others.”  WIS.

State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90

court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp.

Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years on each count) didn’t violate due process.

City of Sheboygan v. Brian J. Cesar, 2010 WI App 170 (recommended for publication); for Cesar: Andrew Mishlove, Lauren Stuckert; Cesar BiC; City Resp.; Reply; AG Amicus

Police, investigating a recent traffic accident, knocked on Cesar’s door and rang his doorbell “numerous” times for up to 10 minutes, and threatened to remain until he came out or they got a warrant;

State v. Sharon A. Sellhausen, 2010 WI App 175, reversed, 2012 WI 5; for Sellhausen: Byron C. Lichstein; case activity

¶1        Sharon Sellhausen appeals her jury conviction based on the presence of the presiding judge’s daughter-in-law on the panel of potential jurors.  The daughter-in-law was not seated on the jury because Sellhausen’s trial counsel used a peremptory challenge to remove her. 

County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10

court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply

Odor of intoxicants insufficient, alone, to support administering PBT.

¶20      When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial.  For example,

State v. Joseph E. Jenamann, 2010AP1825-CR, District 4, 11/24/10

court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply

Continuing detention, following routine traffic stop for loud muffler and after Jenamann passed sobriety tests, was unlawful:

¶12      The only suspicious factors suggesting drug activity were bloodshot, glassy eyes, shakiness, and a nervous suspect.