On Point blog, page 58 of 485
January 2022 publication list
On January 27, 2022, the court of appeals ordered the publication of the following criminal law related decision:
State v. Nakyta V.T. Chentis, 2022 WI App 4 (knowing possession of heroin could be imputed from needle tracks and paraphernalia possession)
No error in admitting foster parent’s testimony at TPR grounds trial
Dunn County Human Services v. N.R., 2021AP129 & 2021AP1830, District 3, 1/28/22 (one-judge decision; in eligible for publication); case activity
The circuit court properly exercised its discretion in allowing the foster parent of N.R.’s children to testify at the grounds trial in N.R.’s TPR proceeding.
An interesting judicial bias claim
State v. O.G., 2021AP1642-CR, 1/25/22, District 1 (1-judge opinion; ineligible for publication; case activity
O.G. appealed a juvenile court order waiving him into adult court. He argued that the judge was objectively biased and requested a new waiver hearing before a different judge. His appendix included 3 affidavits alleging that during a break in the waiver hearing, the judge received a call about another child’s case, became upset, started swearing, and said he was “so done” and couldn’t “wait to get out of the juvenile system.” The judge showed a noticeable change in behavior. Then he waived O.G. into adult court.
CoA affirms denial of writ of coram nobis
State v. S.C.M., 2019AP430, 1/25/22, District 3 (1-judge opinion; ineligible for publication); case activity
A petition for writ of coram nobis must show that (1) a court of record contains a factual error that, if known, would have prevented the court from entering judgment, and (2) petitioners has no other remedy at law such as an appeal. See State ex rel. Patel v. State, 2012 WI App 117, ¶13, 344 Wis. 2d 405, 824 N.W.2d 862. These writs are rare. Defendants sometimes seeks them when they are out of custody and cannot bring a §974.06 motion. In this case, “Seth” petitioned one 10 years after the circuit court adjudicated him delinquent and sent him to Lincoln Hills.
CoA affirms recommitment despite patient’s lengthy stability and medication compliance
Outagamie County v. D.D.G., 2021AP511, District 3, 1/20/22, (1-judge opinion, ineligible for publication); case activity
“Dana” has been under commitment since 2017. It is undisputed that she has taken her medication and has done nothing dangerous in the interim. Yet the court of appeals affirmed her 2021 recommitment because she questions her diagnosis and her need for medication and has concerns about its health effects. The court said that if she were released, she would decline medication and decompensate. Her case highlights a tension between §51.20(1)(am) and a person’s 14th Amendment right to refuse medication. It also shows that courts continue to misapply §51.61(1)(g)4., the involuntary medication statute.
Police had probable cause to arrest for operating with a restricted controlled substance
Forest County v. Brian M. Steinert, 2020AP1465, District 3, 1/19/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Steinert challenged his refusal citation on the ground the police didn’t have probable cause to arrest him, see § 343.305(9)(a)5.a. The court of appeals rejects his challenge.
Failure to preserve squad cam and body cam video didn’t violate due process
State v. Rory David Revels, 2021AP1185-CR, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court held the police violated Revels’s due process rights by failing to preserve the footage from the squad car camera and body camera of the officer who stopped Revels. The court of appeals reverses, holding the circuit court’s conclusions aren’t supported by the record.
Trial court didn’t err in denying parent’s request for new appointed lawyer on morning of trial
Dane County DHS v. J.F., 2021AP1868 & 2021AP1869, District 4, 1/13/22 (one-judge decision; ineligible for publication); case activity
The circuit court properly denied J.F.’s request for a new lawyer on the morning of the first day of her TPR grounds trial.
Police had probable cause to arrest for OWI for purposes of refusal statute
State v. Taras O. Haliw, 2021AP1095, District 4, 1/13/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Haliw argues his license shouldn’t be revoked for refusing a chemical test for alcohol because the police didn’t have probable cause to arrest him for OWI, see § 343.305(9)(a)5.a. The court of appeals rejects his argument.
Admission of damaging hearsay a recommitment trial wasn’t plain error
Rock County v. H.V., 2021AP1760-FT, 1/13/22, District 4 (1-judge opinion, ineligible for publication); case activity
This appeal concerns a recurring problem in Chapter 51 cases: the lack of objection to damaging hearsay at the final hearing. If the appellate lawyer raises ineffective assistance of counsel in the circuit court, the case will become moot before the issue is finally resolved. Here, the appellate lawyer when straight to the court of appeals, admitted the issue was forfeited, and argued “plain error.” The court of appeals rejected the argument based on a significant error of constitutional law.