On Point: 46. WI Court of Appeals

State v. S.A., 2021AP1917-1919, 7/6/22, District 1, (1-judge opinion, ineligible for publication); case activity

The State petitioned to terminate Sarah’s parental rights to her three children because she had failed to assume parental responsibility and her kids were in continuing need of protective services.  According to the State, Sarah had trouble controlling her anger and mental health. She left her kids home alone, and she and the children’s father had a history of domestic violence.

State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)

Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.

State ex rel. DeLorean Bryson v. Kevin Carr, 2022 WI App 34; case activity (including briefs)

A few months ago the court of appeals decided Ortiz v. Carr, holding (with a number of important caveats) that DOC may not take a greater percentage of an inmate’s wages for restitution than the circuit court has ordered–if the circuit court has ordered a specific percentage. Here, the court applies similar logic to obligations other than restitution. It holds that DOC has the authority to set a percentage rate for the crime lab surcharge and the DNA surcharge, but that the circuit court has the authority to set a different rate for collection of court fees. It does not decide who has authority over the victim-witness surcharge, because DOC did not appeal the circuit court’s determination of that question (which was that DOC has the authority to set the percentage, but that its new policy of taking 50 percent violates the administrative rules it earlier promulgated).

State v. Gerald P. Mitchell, 2022 WI App 31; case activity (including briefs)

Mitchell v. Wisconsin, 139 S.Ct. 2525 (2019), held that when police have probable cause to believe a driver has committed a drunk driving offense and the driver is unconscious or stupefied to a point that requires hospitalization and precludes a breath test, police will be justified in getting a blood test without a warrant under the exigent circumstances exception unless the driver can show that; (1) his or her blood wouldn’t have been drawn if police weren’t seeking blood alcohol information; and (2) police didn’t reasonably conclude they had no time to seek a warrant given their other pressing needs or duties. See also State v. Richards, 2020 WI App 48, 393 Wis. 2d 772, 948 N.W.2d 359. Applying that test to Mitchell himself on remand, the court of appeals holds Mitchell hasn’t made the first showing and therefore the warrantless blood draw of him was reasonable.

State v. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as a matter of law, run consecutive to the sentence for his felonies based on Drinkwater v. State, 69 Wis. 2d 60, 230 N.W.2d 126 (1975). The court of appeals says that it can.

State v. Smolarek, 6/16/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Smolarek was involved in a motorcycle accident. After allegedly admitting that he had smoked marijuana much earlier that day, an officer arrested him. A blood test showed that he had been driving under the influence of THC. Smolarek moved to suppress arguing that the officer got his story wrong. He admitted that he had smoked marijuana after the accident. So the officer lacked probable cause to arrest him.

State C. Catti J. Meisenhelder, 2022 WI App 37; case activity (including briefs)

Meisenhelder was busted for shoplifting mouthwash and eyeliner at a Walmart. When police searched her purse they spotted a keychain that had a small, purple vial attached to it. They looked inside, found what looked like meth, and arrested her. She moved to suppress arguing that the search was unlawful under State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 8080 N.W.2d 411 (2011). The circuit court denied the motion. In a decision recommended for publication, the court of appeals affirmed.

Derrick A. Sanders v. State of Wisconsin Claims Board, 2021AP373, District 4, 6/9/22 (not recommended for publication); case activity (including briefs)

This lengthy, unpublished decision doesn’t bear directly on issues arising in day-to-day criminal litigation, but we note it here because its topic—compensation from the state to wrongly convicted innocent persons—may be of interest.

County v. Buffalo v. Kevin J. Rich, 2020AP1526, 6/7/22, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

The court of appeals rejected all three of Rich’s challenges to his OWI 1st conviction. It held that the deputy did have reasonable suspicion to stop Rich’s jeep and to expand the stop to require field sobriety tests. It also held that even though Rich gave six breath samples, he consented to and completed just one breath test.

State v. Q.S., 2022AP420-421, 6/14/22, District 1, (1-judge opinion, ineligible for publication); case activity

This appeal concerns whether the circuit court erroneously exercised its discretion when it it held that the termination of Q.S.’s parental rights to his three children was in their best interests.  The court of appeals held that the circuit court applied all of §48.426(3)‘s “best interests of the child” factors. Q.S. simply didn’t like how heavily the circuit court weighed unfavorable evidence.