On Point blog, page 320 of 483
Curative Instruction; Theft by Fraud – Sufficiency of Proof
State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10
court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply
Curative Instruction
Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.
¶11 Not all errors warrant a mistrial,
Coram Nobis
State v. Andrew M. Obriecht, 2010AP1469, District 4, 10/28/10
court of appeals decision (1-judge, not for publication); pro se
Following earlier unsuccessful challenges to his plea-based conviction via direct appeal and habeas, Obriecht utilizes coram nobis as an attack mechanism. He argues that his plea wasn’t knowing, and that requiring a plea as a precondition to participation in the First Offender Program violated due process. The court rejects the arguments because they don’t relate to factual error unknown at the time,
Guilty Pleas – Plea-Withdrawal
State v. Ricardo Lopez, 2010 WI App 153 (recommended for publication); for Lopez: Catherine M. Canright; BiC; Resp.; Reply
The plea colloquy was deficient with respect to Lopez’s understanding of the rights waived by his no contest plea, therefore in response to his postconviction motion to withdraw plea the trial court held a hearing at which the State bore the burden of proving his understanding.
State v. Gregory M. Sahs, 2009AP2916-CR, District 1, 10/26/10, review granted 11/14/12
Voluntariness – Statements to Probation Officer
court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.
Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation –
Probable Cause – OWI Arrest
State v. Michael A. Barahona, 2010AP1324, District 4, 10/21/10
court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply
¶14 The undisputed facts as disclosed from the record reveal the following: (1) Marks observed Barahona’s vehicle driving in the wrong direction in the eastbound lane of Campus Drive; (2) Marks observed Barahona’s vehicle cross the dotted line dividing two lanes of traffic by approximately one foot and drive over that line for approximately one block when he was pulled over by Marks;
Probation – Length of, Judicial Authority to Reduce
State v. Carl L. Dowdy, 2010 WI App 58, review granted, 3/16/11; for Dowdy: Bryan Cahill; BiC; Resp.; Reply
Judges lack statutory authority to reduce the length of probation.
¶16 We conclude that we do not have cause to refer to legislative history or other extrinsic tools, because the plain language of Wis.
Compelled Self-Incrimination – Sentencing after Revocation
State v. Ronnie L. Peebles, 2010 WI App 156 (recommended for publication); for Peebles: Suzanne L. Hagopian, SPD, Madison Appellate; BiC; Resp.; Reply
Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v.
Mental Commitment – Sufficiency of Evidence to show 2nd standard of dangerousness
Barron County v. Dennis H., 2010AP1026, District 3, 10/19/10
court of appeals decision (1-judge, not for publication); for Dennis H.: Jefren E. Olsen, SPD, Madison Appellate
Evidence held sufficient to support finding of dangerousness.
1) Recent overt act, attempt or threat to do serious physical harm. A psychologist testified that Dennis at times displayed aggressive behavior (“he changes at the snap of the finger and will become highly excitable,
TPR – Right to Counsel – Violation, Structural Error
State v. Darrell K., 2010AP1910, District 1, 10/19/10
court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee
Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.
¶10 The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.
TPR – Underlying CHIPS Order: Implied “Specific Services”
Dane Co. DHS v. Samuel W., 2009AP2606 , District 4, 10/14/10
court of appeals decision (1-judge, not for publication); for Samuel W.: Eileen A. Hirsch, SPD, Madison Appellate
Under Sheboygan County DHHS v. Tanya M.B., 2010 WI 55, although a CHIPS dispositional order must set forth the “specific services” to be provided, it may do so implicitly. Applying that holding here, the court of appeals concludes that the conditions for return in the CHIPS order were not so “generic”