On Point blog, page 61 of 484
TPR petitions were sufficiently pled, and COVID didn’t provide a defense to the parent’s failure to meet the conditions of return
State v. P.G., 2021AP1231, 2021AP1232, & 2021AP1233, District 1, 11/2/21 (one-judge decision; ineligible for publication); case activity
P.G.’s challenges the sufficiency of the TPR petitions against him and claims the COVID epidemic affected his ability to meet the conditions of return. His arguments are in vain.
Defense win! State’s evidence of knowing violation of TRO insufficient
State v. Thomas Louis Giegler, 2021AP952-CR, 11/2/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Unbelievable. A jury convicted Geigler of knowing violation of a TRO. The court of appeals now reverses the conviction because the State’s evidence was insufficient to prove guilt beyond a reasonable doubt. It remands the case with instructions for the circuit court to enter a judgment of acquittal on that charge.
Defense win: Social media posts mixing photos of guns and a crowded theatre was protected speech, not a “true threat”
Town of Brookfield v. Martin M. Gonzalez, 2021AP218, District 2, 10/27/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Gonzalez posted some photos on Instagram as a “story,” a series of shorter, more casual, less permanent images or posts than standard posts on a user’s Instagram feed (so we’re told). The first photo showed a ticket to an upcoming movie at a Brookfield cinema. The second showed loose bullets and a hand holding a loaded magazine. The third showed the inside of a darkened movie theater. (¶3). This “story” led to Gonzalez being convicted for violating the municipality’s disorderly conduct ordinance, a conviction the court of appeals now vacates.
Shocking defense win! Sentence reversed for Gallion violation
State v. Randy L. Bolstad, 2021 WI App 81; case activity (including briefs)
Long, long ago, in a galaxy far away, SCOW held that when circuit courts sentence a defendant, they must demonstrate their exercise of discretion on the record. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197. Circuit courts often ignored this mandate, so appellate courts conjured sentencing rationales for them and affirmed. Click here and here. Now, our very own court of appeals has reversed a sentence for a Gallion violation and recommended the decision for publication!
October 2021 publication list
The court of appeals has ordered publication of the following criminal law related decision:
State v. Nicholas Reed Adell, 2021 WI App 72 (circumstances justified extension of traffic stop to determine whether driver had prohibited alcohol content)
COA finds exigent circumstances based on screaming and a slap
State v. Jesse Rogalla, 2019AP1486-CR, 10/26/21, District 3 (1-judge opinion, ineligible for publication; case activity (including briefs)
Officer Klieforth was dispatched to a home after someone reported that Rogalla was yelling at a woman inside. Klieforth heard both parties screaming, peeked in a window, saw Rogalla yelling as a woman knelt before him crying “You don’t have to do this” and “Why?” After hearing a loud slap, Klieforth entered without a warrant based on fear for the woman’s safety.
TPR court properly considered evidence of prior TPRs
State v. S.T., 2021AP1278-1280, 10/26/21, District 1 (1-judge opinion, ineligible for publication); case activity
The circuit court terminated S.T.’s parental rights to three of her children after she brought one of them (a 5-month old twin) to the hospital with severe burns on his body. S.T. appealed arguing that during the grounds phase of the TPR trial the circuit court erroneously relied on irrelevant evidence–testimony regarding past CHIPS and TPR proceedings that predated the births of these three children.
Traffic stop based on mistake of law upheld
State v. Kyle M. Kleinschmidt, 2020AP881-Cr, 10/13/21, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
Kleinschmidt’s vehicle had two brake lights in good working order, but it also had a high-mount brake light that was not working. An officer stopped him due to the defective light and established that he was operating a vehicle while his license was revoked. Kleinschmidt argues that the officer, who based the stop on §347.14(1), lacked reasonable suspicion. Plus the correct law, § TRANS 305.15 (re high mounted brake lights), exceeds the authority granted in §347.15 and is thus invalid.
Are appeals from expired involuntary med orders ever moot?
Milwaukee County v. R.T.H., 2019AP1763, 10/12/21, District 1 (1-judge opinion, ineligible for publication); case activity
This decision raises an important question of first impression: Are appeals from expired involuntary medication orders ever moot? The court of appeals holds that once the involuntary med order expires, it doesn’t have to address the merits of a claim that there was insufficient evidence to support the order. We think the court of appeals is wrong. Let’s hope that “Robert” files a petition for review.
Another Ch. 51 recommitment reversed due to a circuit court’s violation of D.J.W.
Milwaukee County v. D.C.B., 2021AP581, 10/12/21, Distract 1 (1-judge opinion, ineligible for publication); case activity
Before a circuit court enters an order to recommit a person under Chapter 51, it is supposed to make specific factual findings with reference to the applicable standard of dangerousness in Wis. Stat. §51.20(1)(a)2. Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. The court of appeals reversed the recommitment order in this case because the circuit court violated this rule.