On Point: 46. WI Court of Appeals

State v. Corey Rector, 2020AP1213, certification filed 11/24/21; granted 2/16/22; affirmed 5/23/23; District 2; case activity (including briefs)

Issue (from the certification):

Whether the plain meaning of “separate occasions” in the sex-offender-registration statute means that the two convictions must have occurred at different times in two separate proceedings so that the qualifying convictions occurred sometime before a defendant is convicted in the current case. Stated otherwise, can the qualifying convictions occur simultaneously, as they did in this case, and as Wittrock and Hopkins held?

State v. Lamondo D. Turrubiates, 2020AP233, 11/23/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police arrested Turrubiates and the state charged him with several counts having to do with an alleged assault on his girlfriend. During the arrest police took his phone. The state came to believe the phone might contain evidence of crimes by Turrubiates, and it moved the circuit court to compel him to provide his passcode, despite the fact that it had not yet obtained a warrant to search the phone. See Riley v. California, 573 U.S. 373, 401 (2014). The court ordered Turrbiates to provide the passcode and he refused; it then found him in contempt of court and ordered him jailed until he reveals the code (though it stayed this sanction pending appeal).

State v. Sean B. Day, 2021AP1018, 11/24/21, District 4 (one-judge decision; ineligible for publication); case activity (including brief)

Day was initially charged with repeated sexual assault of a child for sexual contact with a 14-year-old when he was 17. He ended up pleading to a single count of fourth-degree sexual assault and was put on probation. The circuit court failed to mention expunction at the sentencing hearing, but later–both in writing and at the postconviction motion hearing–it gave the reasons it did not find expunction appropriate.

The court of appeals has ordered the publication of the following criminal law related opinion:

State v. Randy L. Bolstad, 2021 WI App 81 (defendant entitled to resentencing because sentencing court failed to consider the gravity of the offense)

Marathon County DHS v. S.K., 2021AP1124 & 2021AP1125, District 3, 11/18/21 (one-judge decision; ineligible for publication); case activity

The circuit court granted partial summary judgment on the petitions to terminate the parental rights of S.K. (“Sarah”) for failure to assume parental responsibility of her two daughters. The court of appeals reverses, holding there are genuine issues of material fact that require a trial on the grounds for the petitions.

Trempealeau County DSS v. T.M.M., 2021AP100 & Trempealeau County DSS v. T.M.M., 2021AP139, District 3, 11/12/21 (one-judge opinions; both ineligible for publication); case activity: 2021AP100 & 2021AP139

The court of appeals agrees with T.M.M. (“Tiffany”) that the evidence presented at her recommitment hearing was insufficient to prove she was dangerous under one of the standards listed in § 51.20(1)(a)2. The court also rejects as moot her appeal of an order transferring her under § 51.35(1)(e) to a more restrictive placement while she was still under the original commitment order.

State v. M.P.H.-R., 2021AP1628, 11/23/21, District 1 (1-judge opinion, ineligible for publication); case activity

M.P.H.-R gave birth to A.S.H. in 2011 when she was just 14 years old. Since then both mother and daughter have suffered mental health problems. They lived together briefly twice over the intervening 10 years. Otherwise, for 7 years A.S.H. has lived with a foster family.  The trial court terminated M.P.H.-R.’s parental rights based on §48.426(3)‘s “best interests of the child” factors. The court of appeals affirmed.

State v. Alex Stone Scott, 2021 WI App 84; case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living on a minuscule SSDI benefit, was able to pay it. Judges Grogan and Neubauer affirmed. Reilly dissented.

State v. Roman T. Wise, 2021 WI App 87; case activity (including briefs)

Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus, the circuit court appropriately denied Wise’s ineffective assistance of counsel claim without a hearing.

State v. Laverne Ware, Jr., 2021 WI App 83; case activity (including briefs)

When the parties filed their initial briefs in this appeal, it was a community-caretaker case. But during briefing, the Supreme Court decided Caniglia v. Strom, which made clear that this doctrine doesn’t permit searches in the home (in the process invalidating some Wisconsin cases). So now–as the Caniglia concurrences foretold–it’s instead a case about the “emergency aid exception.”