On Point: 46. WI Court of Appeals

State v. Leroy Rice, Jr., 2022AP244-CR, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rice sought resentencing based on an inadequate waiver of his right to be physically present at his sentencing per §971.04(1)(g) and based on a new factor: the circuit court overlooked his substance abuse needs at the time of sentencing and thus failed to make him eligible for substance abuse programming (SAP). Successful completion of SAP would entitle him to early release.  The court of appeals rejected both arguments.

State v. L.N.H., 2022AP209, 9/13/22, District 1, (10judge opinion, ineligible for publication); case activity

The State filed petitions against “Lucy” and “Adam,” seeking to terminate their parental rights to “Anthony.” Adam stipulated to grounds for the TPR, but ultimately not to termination. Lucy consented to termination but later argued that her consent was not knowingly and intelligently made.

County of Jefferson v. Julianne Trista Wedl, 2022AP328, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wedl was driving her car when she came upon another vehicle engulfed in flames. An off-duty police officer also happened by and stopped. When the first on-duty officer arrived, he approached Wedl, who seemed to be in shock. He conversed with her and detected an odor of intoxicants when she spoke. He didn’t tell her he suspected anything, though: he said someone would get her statement about the burning car shortly, and suggested she wait in the back of his squad as it was chilly out.

State v. J.W., 2022AP1338, District 1, 10/4/22 (one-judge decision; ineligible for publication); case activity

J.W.’s challenges the sufficiency of the evidence at both the grounds and dispositional phases of the proceeding that terminated his parental rights to J.W., Jr. The court of appeals rejects his arguments.

State v. Q.M., 2022AP1245, District 1, 10/4/22 (one-judge decision; ineligible for publication); case activity

Q.M. challenges the termination of her parental rights to J.W., arguing the circuit court erred in depriving her of the right to present evidence at the disposition hearing. The court of appeals rejects the challenge.

State v. M.J.C., 2022AP779, District 1, 10/4/22 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects M.J.C. attempt to withdraw his no contest plea to the petition to terminate his parental rights to J.C.

State v. John Dean Pleuss, 2021AP504-CR, District 4, 8/25/22 (not recommended for publication); case activity (including briefs)

The deadline for filing a return of property application under § 968.20 is “directory” rather than mandatory, so failing to comply with the deadline doesn’t deny a circuit court the competency to decide the application if the petitioner can establish excusable neglect for not complying with the deadline. Further, the state can’t meet its burden of proving the property was used in the commission of a crime, and thus shouldn’t be returned, by simply referring to the contents of a criminal complaint related to the seizure of the property.

State v. Jonathan L. Liebzeit, 2021AP9-CR, District 3, 8/30/22 (not recommended for publication); case activity (including briefs)

In 1997, a circuit judge sentenced Liebzeit to life without the possibility of parole for a homicide he committed at the age of 19. In 2019, after hearing a presentation at a judicial education seminar about juvenile brain development and shortly thereafter sentencing an 18-year-old for a crime, the judge decided to to contact Liebzeit’s lawyer to suggest a sentence modification may be appropriate based on the new factor of the brain development research. After defense counsel filed a sentence modification motion the court modified Liebzeit’s sentence to make him eligible for paroled after 25 years based on two new factors: 1) new scientific understanding of brain maturity in adolescents; and 2) Liebzeit’s brain damage from his inhalant use. (¶¶4-22). The court of appeals holds the circuit court erred because Liebzeit didn’t prove either new factor.

The court of appeals September 2022 publication order did not include any criminal cases.

State v. Robert J. Baur, 2021AP55, 8/25/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An OWI defendant can attack prior convictions–thus seeking a lower offense number and lower associated penalty–only if he or she lacked counsel in that prior proceeding and did not knowingly, voluntarily and intelligently waive the right to counsel. Wisconsin courts have adopted a burden-shifting regime: if a defendant can show that the court in the prior proceeding didn’t do a proper colloquy on the counsel right, the state must then prove that the defendant nevertheless understood the right. But given that priors are often from quite a while ago, it often happens that no transcript of the prior hearing can be produced. What then?