On Point blog, page 393 of 484
TPR – Issue Preclusion, Applicability of Doctrine
Brown County DHS v. Terrance M., 2005 WI App 57
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9. (The court remands for determination of whether issue preclusion is appropriate in this instance,
Judicial Bias – Exposure to Relevant Information
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the sole basis for recusal is a claim that the judge was exposed to relevant sentencing information that he was entitled to hear, the very premise for the claim is flawed, ¶17.
¶16 Whether a judge was a “neutral and detached magistrate” is a question of constitutional fact which we review de novo and without deference to the trial court’s ruling.
Judicial Substitution – Delinquency, § 938.29(1)(m) – Review by Chief Judge
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding: The chief judge has authority to review denial of a substitution request in a delinquency proceeding, under §§ 938.29(1)(m) and 801.58(2). (Because § 801.58(2) is the more specific provision, it “applies when the juvenile’s request for substitution is denied,” ¶9; it plainly provides for “review[] by the chief judge of the judicial administrative district.”)
¶10.
Judicial Substitution – TPR, § 48.29
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding:
¶11. The trial court ruled and the County now argues that Terrance’s substitution request was untimely because it was not filed before “hearing of any preliminary contested matters” under Wis. Stat. § 801.58. Terrance argues the applicable statute is Wis. Stat. § 48.29, which allows a request “either before or during the plea hearing ….”
Judicial – Substitution – § 971.20(5) – Timeliness of Request, Newly Assigned Judge
State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams
Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked.
The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5),
Judicial Substitution – Review of Denial, by Writ
State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85
For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial
Issue/Holding:
¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496,
(State) Habeas – Generally, Statutory vs. Common Law – Challenge to Ch. 980 Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding( Dicta): ¶12, n. 6:
The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment.
Possession with Intent to Deliver — Sufficiency of Evidence, Proof of Intent
State v. Sheldon C. Stank, 2005 WI App 236
For Stank: Dennis P. Coffey
Issue/Holding:
¶45 We further reject Stank’s argument that insufficient evidence existed to support the “intent to deliver” element of count two. According to Peasley v. State, 83 Wis. 2d 224, 229, 231-32, 265 N.W.2d 506 (1978), the finder of fact may consider many factors indicative of intent to deliver,
Possession with Intent to Deliver, §§ 961.41(1m), 961.01(6) – Sufficiency Of Evidence of Intent to Deliver
State v. Rickey Eugene Pinkard, 2005 WI App 226
For Pinkard: John J. Grau
Issue/Holding: Someone holding drugs for another person and planning to return the drugs to that person intends to deliver within the meaning of § 961.41(1m). State v. Smith, 189 Wis. 2d 496, 525 N.W.2d 264 (1995) (conspiracy to deliver not supported where only evidence is that seller intended to sell small amount for buyer’s personal use) distinguished,
Plea-Withdrawal – Pre-Sentence – Generally
State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶11 “A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show that there is a ‘fair and just reason,’ for allowing him or her to withdraw the plea.” State v. Kivioja, 225 Wis. 2d 271, 283,