On Point blog, page 318 of 484
Plea Bargain Breach: Prosecutorial Failure to Make Agreed IC-Recommendation not Material Breach
State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC; State Resp.; Reply
(Sentencing issue in the case discussed separately, here.)
Plea Bargain – Breach
The plea agreement required the prosecutor to recommend a 20-year sentence, comprised of 5-7 years’ confinement and the balance on extended supervision,
TPR – Knowing Admission to Grounds, Ineffective Assistance
State v. Kenneth E., 2010AP1520, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate
(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs. Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice,
TPR – Exercise of Discretion
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court of appeals decision (1-judge, not for publication); for LaDonna E.: Jane S. Earle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.
Warrantless Blood Draw – Driving under Influence of Drugs
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court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply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.
Guardianship – Respondent’s Right to Personal Presence
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.
DNA Surcharge – Timeliness of Challenge
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.
§ 944.20(1)(a), Lewd & Lascivious
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.
Notice of Mandatory Minimum
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.
“In-Home Seizure” – “Constructive Entry”
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;
Juror Disqualification – In-Law of Presiding Judge
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.