On Point blog, page 56 of 485
Correcting court’s mistaken belief about eligibility for earned release programming wasn’t a “new factor”
State v. Michael Lee Muehl, 2021AP1755-CR & 2021AP1758-CR, District 4, 3/31/21 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court sentenced Muehl to prison and made him eligible for the earned release programs. Turns out Muehl was ineligible for those programs, so he filed a motion to modify his sentence on the grounds that his ineligibility was a “new factor”—that is, a fact highly relevant to the imposition of sentence that was not known to the judge at the time of sentencing because it wasn’t in existence or was unknowingly overlooked. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. (¶¶2-10). Although a defendant’s ineligibility for earned release programming might be a new factor in some cases, it isn’t here because Muehl hasn’t established his ineligibility was “highly relevant” to the sentencing decision.
State’s failure to address defendant-respondent’s arguments is taken as a concession
State v. Eric Allen Erickson, 2021AP1826-CR, District 4, 3/31/22 (one-judge decision; ineligible for publication); case activity (including briefs)
The state appealed a circuit court order granting Erickson’s collateral attack of a prior OWI conviction. Erickson’s response brief argued that the state ignored the relevant facts and relied on irrelevant facts. Erickson also cited authorities that “squarely rebut” authorities relied on by the state. Despite Erickson’s onslaught against its argument,
Use of handcuffs didn’t transform stop into arrest
State v. Christopher Antonje Tek, 2021AP1112-Cr, 3/31/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs).
About 45 seconds into a traffic stop, Officer Rocha placed Tek in handcuffs and continued his investigation of a possible OWI. Ten minutes later, Rocha took Tek to jail and arrested him. Tek argued that he was arrested–without probable cause–when Rocha cuffed him. The court of appeals disagreed. It held that Rocha had reasonable suspicion to investigate a possible crime, and his use of handcuffs did not transform Tek’s detention into an arrest.
Admission of photos provided to defense on day of trial was harmless
State v. Richard Brian Lopez, 2020AP108-CR, 3/29/2022, District 1; (not recommended for publication); case activity (including briefs)
Lopez was convicted of battering his girlfriend, “Margaret,” with whom he had children. Before trial, the DA turned over photos depicting the bruising on Margaret’s face. But at trial, it surprised Lopez with a second set of photos showing the progression of her bruising. The defense objected. The circuit court refused to exclude the second set based on harmless error. The photos only depicted what Margaret and police described in their testimony. The court of appeals affirmed.
Victim’s rights trump defendant’s right to prompt disposition of case
State v. Michael J. Leighton, 2021AP1949-cr, 3/30/22, District 2 (not recommended for publication; case activity (including briefs)
In 2018, the State charged Leighton with misdemeanor theft and fraudulent use of a credit card, both as repeaters. In 2020, he asked the DA for “prompt disposition” of his case per §971.11. Receiving no response, he moved for dismissal, which the court granted without prejudice. On appeal, he says dismissal should have been with prejudice. The court of appeals disagreed due to the victim’s rights.
March 2022 publication order
On March 30, 2022, the court of appeals ordered publication of the following criminal law related decisions:
Dismissal under intrastate detainer statute didn’t preclude successive charges arising out of same incident
State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.
Challenges to CHIPS order rejected
Portage County v. D.A., 2021AP1683, 2021AP1685, 2021AP1686, District 4, 3/24/22 (one-judge decision; ineligible for publication); case activity (for 21AP1683)
D.A. (“David”) raises various challenges to the finding his three children are in need of protection or services and to the dispositional orders. The court of appeals rejects his claims.
Defense win! Warrantless entry into hotel room violated the 4th Amendment
State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)
Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.
Defense win! COA limits DOC withholdings from prison wages to pay restitution
Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)
Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:
Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.