On Point blog, page 319 of 484
Reasonable Suspicion for PBT
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court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply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,
Reasonable Suspicion, Drug Use
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court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply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.
Sentencing – Inaccurate Information
State v. David Derrell Morgan, 2009AP3081-CR, District 1, 11/23/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Mary D. Scholle, SPD, Milwaukee Appellate; Morgan BiC; State Resp.; Reply
Claims that the sentencing court relied on inaccurate information with respect to Morgan’s employment history and family relationships rejected, on ground of failure to show reliance:
¶12 Morgan has not shown that the circuit court actually relied on the allegedly inaccurate information.
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.
Court of Appeals Publication Orders, 11/10
court of appeals publication orders, 11/17/10
On Point posts from this list:
2010 WI App 146 State v. Daniel H. Hanson
2010 WI App 153 State v. Ricardo Lopez
2010 WI App 155 State v. Lee Anthony Batt
Newly Discovered Evidence: Test – SVP Commitment – Revised Actuarial; Completeness Doctrine, § 901.07; Interest of Justice Review
State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply
Newly Discovered Evidence – Test – Generally
¶14 In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,
Traffic Stop – Duration; Field Sobriety Testing – PBT
State v. Joshua L. McDonald, 2010AP1045-CR, District 4, 11/18/10
court of appeals decision (1-judge, not for publication); for McDonald: Tracey A. Wood; McDonald BiC; State Resp.; Reply
Traffic Stop – Duration
¶13 We conclude that the time it took for the deputy to ask McDonald whether he had been drinking that night and for McDonald to answer did not unreasonably prolong the stop.
Sex Offender Registration Requirement Where Homeless
State v. William Dinkins, Sr., 2010 WI App 163, review granted 3/16/11; for Dinkins: Steven D. Phillips, SPD, Madison Appellate; Dinkins BiC; State Resp.; Reply
A prisoner subject to sex offender registration requirement, § 301.45, isn’t subject to criminal penalty for failing, on impending release, to notify authorities of his intended “residence” where he will be homeless.
Plea-Withdrawal – Hearing – Exculpatory Evidence
State v. William M. O’Donnell, 2009AP2962, District 2, 11/17/10
court of appeals decision (1-judge, not for publication); for O’Donnell: Walter Arthur Piel, Jr.; O’Donnell BiC; State Resp.; Reply
Because the evidence allegedly suppressed by the State wasn’t exculpatory, O’Donnell wasn’t entitled to an evidentiary on his postconviction motion asserting suppression of exculpatory material.
¶10 A circuit court, in its discretion,