On Point blog, page 38 of 487
Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification
State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR
The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.
COA holds error in information didn’t invalidate repeater enhancer
State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)
Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.
April 2023 publication list
On April 26, 2023, the court of appeals ordered publication of the following criminal law related decisions:
Outagamie County v. L.X.D.-O., 2023 WI App 17 (counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings).
Defense win! “Serious felony against a child” finding reversed in TPR appeal
Brown County Department of Human Services v. S.K., 2023 WI App 27; case activity
A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of child neglect resulting in death under but “as a party to the crime.” In a decision recommended for publication, the court of appeals reversed, but it rejected Stephanie’s argument that an “as a party to the crime” conviction can never qualify as a “serious felony.”
COA reverses 15-day suspension of operating privileges
County of Grant v. Brad Alan Hochhausen, 2022AP1065, 4/13/23, District 4; (1-judge opinion, ineligible for publication); case activity (including briefs)
Hochhausen was convicted of speeding under §346.57(5). The circuit court imposed a 15-day suspension of Hochhausen’s operating privileges and a civil forfeiture pursuant to §343.30(1n). On appeal he argued that §343.30(1n) does not apply to convictions under §346.57(5), The court of appeals agreed and reversed.
Dad’s criminal record appropriately admitted into evidence during grounds phase of TPR
State v. B.L., 2023AP8, 4/11/23, District 1 (1-judge opinion, ineligible for publication); case activity
“Barry” appealed an order terminating his parental rights to his 4 1/2-year-old daughter, Alice. He argued that the circuit court erred in admitting his criminal history during the grounds phase and erred in finding that it was in Alice’s best interest to terminate his rights. He lost on both issues.
Defense win: Frisking person before allowing him to sit in squad car was unlawful
State v. Jesse E. Bodie, 2021AP1656-CR, District 4, 4/13/23 (not recommended for publication); case activity (including briefs)
A state patrol officer unlawfully frisked Bodie before allowing Bodie to sit in his squad car because, under the circumstances of this case, the officer didn’t have an objectively reasonable basis to suspect Bodie was armed and dangerous.
COA denies IAC claims re failure to move for suppression and to cross-examine officer effectively
State v. Antwan Eugene Gill, 2022AP654-Cr, 4/6/23, (1-judge opinion, ineligible for publication), case activity (including briefs)
Gill was convicted for possession of THC and for operating a vehicle with a detectable amount of THC in his blood. He argued that his trial lawyer was ineffective for failing to move for suppression of the results of field sobriety and blood tests and for failing to exploit inconsistences between an officer’s testimony and his report and squad-cams footage. The court of appeals rejected both claims.
Circuit court didn’t lose jurisdiction by dismissing charges and then quickly reinstating them
State v. Rasheem D. Davis, 2023 WI App 25; case activity (including briefs)
Addressing an issue of first impression in Wisconsin, the court of appeals holds that the circuit court’s order dismissing charges against Davis that was rescinded minutes later didn’t deprive the court of subject matter jurisdiction.
Defense win! Cop didn’t have reasonable suspicion to keep detaining driver who didn’t smell like weed
State v. Noah D. Hartwig, 2022AP1802, 3/30/23, District 4; (one-judge decision; ineligible for publication) case activity (including briefs)
On an early evening in January, an officer noticed an unoccupied car parked in the lot of a public boat launch. She observed a purse in the vehicle and contacted dispatch to see if she could find out anything about the car; she said he was concerned that its erstwhile operator might need some assistance on the cold and icy night. While the officer was waiting in her squad for dispatch to respond, Hartwig arrived in the parking lot driving his Jeep. A female passenger got out of the jeep and into the mysterious car. The officer turned on her emergency lights and approached the vehicles.