On Point blog, page 329 of 484

PLRA – Partial Dismissal as Strike

State ex rel. Titus Henderson v. Raemisch, 2010 WI App 114; pro se; Resp. Br.

Partial dismissal of a prisoner lawsuit doesn’t counts as a “strike” within the meaning of the  § 801.02(7)(d) “three-strike” provision of the Wisconsin Prisoner Litigation Reform Act.

The PLRA regulates “prisoner” lawsuits. Typically, these relate to conditions of confinement, something the SPD doesn’t provide representation for, but our courts in their infinite wisdom apply the strictures of the PLRA to matters of SPD concern such as cert review of revocations,

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Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions

State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply

Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance

Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,

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Venue: Instruction, Proof; Obstructing: Proof; Instruction: Recently Stolen Property

State v. Donald L. Schultz, 2010 WI App 124 (decision originally issued 7/20/10, subsequently withdrawn; reissued 8/17/10); for Schultz: Margaret A. Maroney, Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply

Venue – Instruction

¶12 Although venue is not an element of a crime, it nonetheless must be proved beyond a reasonable doubt. State v.

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Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion

State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10

court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply

Sufficiency of Evidence Review

Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,

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Guilty Pleas – Collateral Consequence – Federal Gun Ban

State v. Kurt D. Neis, No. 2009AP1287-CR, District IV, 7/15/10

court of appeals decision (1-judge, not for publication); for Neis: Jacquelyn L. Wolter; BiC; Resp.; Supp. Resp.

Guilty Pleas – Collateral Consequence – Federal Gun Ban

Although Neis’s guilty plea to disorderly conduct, § 947.01, subjected him to the automatic federal firearm ban given the circuit court’s finding that the conduct related to domestic violence,

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Traffic Stop – OWI

State v. Brittany A. Meye, No. 2010AP336-CR, District II, 7/14/10

court of appeals decision (1-judge, not for publication); for Meye: Kevin G. Keane; BiC; Resp.; Reply

¶6        Meye argues that the odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop. We agree. We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop.

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Alford Plea

State v. Lyle A. Lay, No. 2010AP81-CR, District III, 7/13/10

court of appeals decision (1-judge; not for publication); for Lay: Timothy A, Provis; BiC; Resp.; Reply

An Alford plea may be one of “no contest” as well as “guilty”:

¶8      Lay is mistaken that an Alford plea cannot be entered within the context of pleading no contest.

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Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement

State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply

Jury Instructions – Exposing Child to Harmful Materials

The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.

¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.

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TPR – Plea-Withdrawal

Dane Co. DHS v. Brittany W., No. 2009AP2778, District IV, 7/8/10

court of appeals decision (1-judge; not fo publication); for Brittany W.: Lora B. Cerone, SPD, Madison Appellate

The court rejects Brittany’s claim she didn’t understand the consequence of her no-contest plea (that she would be deemed unfit, and that disposition would turn on the child’s best interests), given the trial judge’s finding that the denial of such knowledge wasn’t credible,

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Evidence – Extraneous Misconduct; Effective Assistance

State v. Raymond A. Habersat, No. 2009AP976-CR, District I, 7/7/10

court of appeals decision (3-judge; not recommended for publication); for Habersat: Angela Conrad Kachelski; BiC; Resp.; Reply

Evidence – Extraneous Misconduct

On Habersat’s trial for first-degree sexual assault of a child, admission of evidence of his 1991 sexual assault of a child to establish motive and intent was a proper exercise of discretion,

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