On Point: 46. WI Court of Appeals

State v. S.G., 2022AP585-587, 7/19/22, District 1 (1-judge opinion, ineligible for publication); case activity

S.G. argued that the circuit court failed to address 2 of the 6 “best interest” factors in §48.426(3) when it terminated her parental rights to her 3 sons. According to the court of appeals, the record proves otherwise.

State v. M.B., 2022AP89, District 1, 7/19/22 (one-judge decision; ineligible for publication); case activity

M.B. entered a no contest plea to failing to assume parental responsibility and to her daughter being in continuing need of protection or services. During the plea colloquy, the circuit court suggested she had the “same trial rights” at the dispositional phase as at the grounds phase. (¶¶3-4). This, M.B. argues, was a flaw in the colloquy because it misstated the correct statutory standard to be applied at disposition—the best interests of the child—and suggests the state had a burden it doesn’t have; thus, she should be allowed to withdraw her plea. (¶¶11, 13). The court of appeals disagrees.

Walworth County v. M.R.M., 2022AP140-FT, certification filed 7/14/22, certification granted, 9/14/22, reversed, 2023 WI 59; District 2; case activity

1. Does the Wisconsin Supreme Court’s decision in Waukesha County v. E.J.W., 2021 WI 85, ¶38, 399 Wis. 2d 471, 966 N.W.2d 590, have retroactive application or only prospective application?

2. In a ch. 51 case involving a petition to extend a commitment order, is circuit court competency determined from the expiration of the earlier commitment order or from the expiration of the extension order, even where the extension order is determined on appeal to be invalid?

State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)

The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.

State v. Junior L. Williams-Holmes, 2022 WI App 38, petition for review granted, 11/16/22, reversed and remanded, 2023 WI 49; case activity (including briefs)

Williams-Holmes was given a bifurcated prison sentence and consecutive probation after being convicted of battery to and false imprisonment of his girlfriend. Because of Williams-Holmes’s history of domestic violence, the circuit court ordered, as a condition of probation and extended supervision, that Williams-Holmes not reside with any member of the opposite sex or any child not related to him by blood “without permission of the Court.” (¶1). Williams-Holmes argues the circuit court’s condition is improper because it results in the court “administering” probation, which is a task reserved for the Department of Corrections. The court of appeals disagrees, holding that the circuit court may impose this condition—though it must implement it using the statutory process for modifying conditions of supervision.

On June 29, 2022, the court of appeals issued its June 2022 publication order. No criminal law related cases were ordered published.

State v. A.G., 2022AP652, 7/12/22, District 1 (1-judge opinion, ineligible for publication); petitions for review granted, 10/11/22, reversed, 2023 WI 61; case activity

District 1 means business. Not long ago, it reversed an order denying A.G.’s claim that his no-contest plea to grounds for a TPR was not knowing, intelligent, and voluntary because the circuit court neglected to explain the potential dispositions to him. It remanded the case for an evidentiary hearing. There, the State simply presented a transcript showing that 10 months before the plea, the circuit court explained potential dispositions to A.G. The circuit court said the State met its burden. On appeal after remand, the court of appeals says no way!

State v. A.T., 2022AP544, 6/28/22, District 1, (1-judge opinion, ineligible for publication); case activity

Guys, if you have unprotected sex, call or text your partner after. And “Wisconsin law does not require courts to consider race or culture when determining whether to terminate parental rights.” Opinion, ¶29. Those are the two main takeaways from this TPR opinion.

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.