On Point: 46. WI Court of Appeals

Knight and Knight v. Milwaukee Co., 2002 WI App 194

Issue/Holding: A trial court lacks competency to enter orders with respect to an alleged incompetent, unless the g.a.l. certifies the specific reasons the person can’t attend, pursuant to § 880.08(1).

State v. George Schertz, 2002 WI App 289
For Schertz: Barbara A. Cadwell

Issue/Holding: The provision in § 971.17(3)(e) for hearing within 30 days a petition for revocation of NGI conditional release is directory, not mandatory. ¶¶7-14.

State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.
Holding:

¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin,

State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: The trial court’s rejection of respondent’s post-commitment proffer of an expert, in support of a claim that trial counsel was ineffective for not securing an expert, is sustained, due in particular to the trial court’s conclusion that the proffered expert would not have altered the outcome: “that judge,

State v. Dawn M. Champion, 2002 WI App 267, PFR filed 12/2/02
For Champion: Patricia L. Arreazola

Issue: Whether the defendant’s early completion of all available rehabilitation programs is a new factor justifying reduction of the confinement portion of her sentence.

Holding:

¶13. Our review of the legislative history of 1997 Wis. Act 283 demonstrates that the legislature intended something inconsistent with Champion’s proposal.

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding: Defendant’s new-found realization that his behavior was caused by childhood sexual exploitation isn’t a new factor justifying sentence reduction: “¶25 … Just as a new expert opinion based on previously known or knowable facts is nothing more than the newly discovered importance of existing evidence … not newly discovered evidence for purposes of plea withdrawal,

State v. Kelley L. Hauk, 2002 WI App 226
For Hauk: David D. Cook

Issue/Holding: Reversal of defendant’s conviction in another case is new factor (where remaining, valid sentence was concurrent to vacated sentence) upon which trial court may, but is not required, to reduce sentence.

State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky

Issue/Holding: The trial court erred in granting a motion to modify sentence without either seeking the state’s response or holding a hearing. Procedure on motion to modify sentence is similar to that for a post-conviction motion under § 974.06(3) — if the motion is obviously non-meritorious, the trial court should deny it outright;

State v. Robert L. Noll, 2002 WI App 273

Issue: Whether a new-factor based motion to modify sentence may be rejected as untimely under § 973.19.

Holding: The motion invoked the trial court’s inherent authority to modify, and therefore § 973.19 and its 90-day deadline was inapplicable. ¶5. The two procedures are distinct. Under § 973.19 a defendant may within 90 days of sentence “assert[] an erroneous exercise of discretion based on excessiveness,

Richard Thielman v. Leean, 2002 WI App 33
Companion case: Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)For Thielman: Mary Kennelly

Issue/Holding:

¶1. The Department of Health and Family Services (DHFS) appeals the circuit court’s order enjoining DHFS from transporting Richard Thielman and similarly committed ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport.