On Point blog, page 44 of 485
Minor passenger in car operated by intoxicated driver is a “victim” for purposes of restitution statute
State v. Mark J. Gahart, 2022 WI App 61; case activity (including briefs)
The court of appeals holds that driving while intoxicated with a minor passenger is not a victimless crime: the minor passenger is a victim for purposes of the restitution statute.
Decision to waive juvenile into adult court valid despite court’s misunderstanding about juvenile court dispositions
State v. M.N., Jr., 2022AP855, District 1, 11/1/22 (one-judge decision; ineligible for publication); case activity
The circuit court decided to waive M.N. (“Max”) into adult court based in part on the belief that any juvenile court supervision and services would end when M.N. turned 18 in 6 months. (¶8). But as the state concedes, juvenile court dispositions can extend beyond the juvenile’s 18th birthday. (¶16). The court of appeals holds that the circuit court’s erroneous belief was harmless.
Adding new charges to information was proper and didn’t taint defendant’s decision to plead guilty
State v. Etter L. Hughes, 2021AP1834-CR, District 1, 11/1/22 (not recommended for publication); case activity (including briefs)
The court of appeals rejects Hughes’s claim that she should be allowed to withdraw her pleas to four counts of child abuse on the grounds that the state improperly amended the information to add more charges against her because there was no independent factual basis for those charges and because two of the counts were multiplicitous under § 948.03(5)(c).
Defense win: Circuit court lacked authority to sanction defendant for accepting a plea offer made after the deadline for plea negotiations had passed
State v. Suzanne Lee Shegonee, 2022AP361-CR, District 4, 10/27/22 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a guest post by Katie York, head of the SPD’s Appellate Division.
The circuit court sanctioned Shegonee $500 for accepting a new plea offer 3 days prior to her scheduled jury trial. The state made the offer after the court-imposed deadline for resolving the case. The court of appeals recognized the circuit court’s understandable concern about time pressures, number of cases, and the need for circuit courts to keep cases moving in a timely manner. However, it concluded the sanction imposed on Shegonee was “just outside the bounds of any authority for such a sanction” (¶¶1, 18) and thus reversed the sanction order.
October 2022 publication list
On October 26, 2022, the court of appeals ordered the publication of the following criminal law related decision:
State v. Terry L. Hibbard, 2022 WI 53 (aiding buyer in drug sale can lead to Len Bias liability because it also aids dealer)
Defense win: New OWI trial ordered because of erroneous admission of evidence of defendant’s prior hit-and-run conviction
State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)
Evidence of Madeiros’s prior hit-and-run conviction was admitted at his trial on OWI 5th, over his objection. This other-acts evidence was inadmissible because it wasn’t probative of any non-propensity purpose and the error in admitting the evidence wasn’t harmless, so Madeiros is entitled to a new trial.
COA reverses ch. 51 extension for trial court’s failure to specify type of dangerousness
Trempealeau County v. C.J., 2022AP286, 10/11/22, District 3 (one judge decision; ineligible for publication) case activity
C.J. (“Carter” in the opinion) is diagnosed with paranoid schizophrenia. He was initially committed after an incident in which he drove recklessly with his girlfriend in the car, threatening to kill her and himself along with the president and vice president. As the six-month commitment neared its end, the county petitioned to extend. It did so even though C.J. had not had further incidents or problems in his group home, was taking his medications voluntarily; recognized his mental illness, and expressed that he wished to continue medication because it was helping him a great deal. (¶¶3-8).
COA rejects challenges to jury instructions: one good route to conviction is enough
State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)
A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.
TPR affirmed; no need to consider alternative to temrination
State v. D.W. Jr., 2022AP1397, 10/18/22, (1-judge opinion, ineligible for publication); case activity
D.W. Jr. has along criminal history. He was incarcerated when his son, J.W., was born, and the two had never lived together. In fact, J.W. and his brother lived with a foster parent, who was also an adoptive resource for both of them. When the circuit court terminated D.W.’ Jr.’s parental rights, he argued that the court neglected to consider a dispositional alternative– the appointment of a guardian for J.W. It didn’t fly.
CoA affirms finding that incarcerated mom is an unfit parent
State v. A.A.L., 2022AP1074, 10/11/22, District 1, (1-judge opinion, ineligible for publication); case activity
A parent’s failure to meet the conditions for the return of her child due to her incarceration is not a constitutional basis for finding her an unfit parent during the grounds phase of a TPR proceeding. Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. “Alexis” argued that the circuit court violated this rule when it found grounds to terminate her rights to “Tom” based on continuing CHIPS and failure to assume parental responsibility. The court of appeals disagreed.