On Point: 46. WI Court of Appeals

State v. Travis R. Braly, 2021AP2086-CR, District 4, 6/9/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Braly challenges the stop of the car he was driving, arguing it was clearly erroneous for the circuit court to find that the officer who stopped him had reasonable suspicion to believe he had not stopped prior to entering an intersection as required by § 346.46(1) and (2)(c). The circuit court rejects the claim based on the officer’s testimony, the squad camera footage, and the circuit court’s findings.

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of 5 years. Both lawyers pointed out the probation has to be either concurrent with or consecutive to the total bifurcated sentence, so the judge ordered the probation to be consecutive, thus increasing the “global” disposition to 7 years. The judge’s need to correct its initial error didn’t amount to a new factor justifying sentence modification.

State v. Rebecca Sue Ferraro, 2021AP1654-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ferraro pled to and was sentenced for OWI, third offense, before the blood alcohol test result of her blood draw was available. At sentencing the preliminary breath test result was bandied about as one of the aggravating factors. A few days after sentencing, the BAC result arrived. Turns out it was lower than the PBT. That is not a new sentencing factor because it’s not highly relevant to the sentence imposed; and even if it was, the circuit court properly concluded it didn’t merit sentence modification.

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

State v. M.S.H., 2022AP369, 6/1/2022, District 1 (one-judge decision; ineligible for publication); case activity

The circuit court found M.S.H. to be an unfit parent on summary judgment. Turning to the dispositional phase, the court granted the state’s request to conceal from M.S.H. the identity of the person who the state considered likely to adopt her child.

State v. S.L.W., 2021AP1736 & 1737, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity

S.LW. appeals the termination of parental rights to her children. She argues her attorney failed to inform the jury of court-ordered services the Milwaukee County child-services agency didn’t provide. The court of appeals holds that if counsel performed deficiently in this regard, it didn’t affect the jury trial because the county did make a reasonable effort to provide the services, and because there was an independent ground for termination. (UPDATE: the original post said S.L.W. didn’t challenge this second ground on appeal; the comment below informs us that she did.)

State v. S.R., 2022AP293, 294 & 295, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity

S.R. appeals the termination of her parental rights to three of her children.  A jury found her unfit on two grounds: continuing CHIPS and failure to assume parental responsibility. She doesn’t challenge these findings on appeal; she instead attacks the circuit court’s determination that terminating her parental rights was in the children’s best interest.

Outagamie County v. C.J.A., 2022 WI App 36; case activity

On April 12th the court of appeals issued an opinion holding that due process does not require a county to give particularized notice of the standard of dangerousness that a person will satisfy if treatment is withdrawn. It also found that special verdict given to the jury defective. The court of appeals reversed and remanded the case for a new trial on a recommitment that had expired. Happy news! The court of appeals withdrew that opinion. The reissued opinion omits the due process decision, retains the special verdict win, and now reverses outright.

On May 25, 2022, the court of appeals ordered publication of the following criminal law related decisions:

State v. D.J.L., 2021AP436, 5/10/22, District 3 (1-judge opinion ineligible for publication); case activity

The State charged 17-year-old “David” with exposing himself to two girls (5 and 9) and sexually assaulting the older one. On appeal, he challenged the circuit court’s decision to waive him into adult court. The court of appeals held that the circuit court (1) appropriately applied §938.18(5)’s waiver criteria, (2) had the discretion to reject an expert opinion opposing waiver, and (3) did not base its decision on the fact that D.J.L. would get a lighter sentence if he stayed in juvenile court.