On Point blog, page 41 of 490
Photo array was not impermissibly suggestive
State v. Brandon B. Smiley, 2022AP1522-CR, District 4, 6/2/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The court of appeals rejects Smiley’s claim that the photo array shown to A.B., the complaining witness, was impermissibly suggestive and, therefore, her (not very confident) identification of him after looking at the array should have been suppressed.
Termination of parental rights affirmed despite some missteps
Columbia County DHS v. K.D.K., 2022AP1835, 5/25/23, District 4 (1-judge opinion, ineligible for publication); case activity
K.D.K. challenged an order terminating his parental rights to C.A.K. on 3 grounds: (1) the judge was not properly assigned to preside over his case; (2) the circuit court refused to give a special verdict question asking whether it had been impossible for K.D.K. to meet the conditions for return set forth in the CHIPS dispositional; and (3) trial counsel was ineffective in several respects. The court of appeals rejected all claims.
May 2023 publication list
On May 31, 2023, the court of appeals ordered publication of the following criminal law related decisions:
Police had probable cause to search car, so didn’t unlawfully extend stop to wait for drug dog
State v. Warner E. Solomon, 2022AP634-CR, District 2, 5/24/23 (not recommended for publication); case activity (including briefs)
The court of appeals rejects Solomon’s argument that the police unlawfully extended a traffic stop to wait for a drug dog to arrive to do a thorough search of his car.
Defense win: year-long wait for initial appearance requires dismissal w/o prejudice
State v. Christopher S. Butler, 2021AP177, 5/9/23, District 3 (not recommended for publication); case activity (including briefs)
The state charged Butler with multiple sexual assaults of children. These charges resulted in a probation hold that lasted about four months; the ALJ did not revoke Butler and the hold was terminated. But Butler’s new charges were still pending, and he remained in jail for about another seven months while the public defender tried to find a lawyer to represent him. When that lawyer finally came on board, Butler had his initial appearance and then his prelim–about 11 months after he’d been arrested. Butler pleaded not guilty and his new attorney moved to dismiss the charges, arguing that the long delay had deprived the circuit court of personal jurisdiction. The trial court denied the motion, but the court of appeals granted Butler’s petition for interlocutory appeal. It now reverses and requires dismissal of the charges without prejudice.
Defense win! Courts can’t apply §939.62(1) and §961.48 enhancers at the same time
State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)
In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.
COA: Officer had reasonable suspicion for Terry stop
State v. Jonathan M. Mark, 2022AP001739-CR, 5/10/23, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
While at a Kwik Trip investigating an unrelated incident, an officer spotted Mark whom he believed to be the subject of an outstanding warrant. When the officer conducted a Terry stop, Mark resisted and wound up pleading guilty to obstructing an officer. On appeal, he argued–unsuccessfully–that the officer lacked reasonable suspicion to stop him, and he received ineffective assistance of counsel.
COA affirms default TPR against incarcerated dad
Price County v. T.L., 2022AP1678, 4/25/2023, District 3 (1-judge opinion, ineligible for publication); case activity
The law governing default TPRs is messy. Click here. This decision makes it messier.
Defense win: Defendant alleged sufficient facts to get a hearing on his motion to reopen a default refusal judgment
State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)
The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.
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.