On Point blog, page 62 of 485
Defense win! COA holds imposed-and-stayed prison sentence begins on receipt at Dodge
State v. Joseph L. Slater, 2021 WI App 88; case activity (including briefs)
Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on on the new charges, he got three new concurrent prison sentences. The court of appeals now holds that Slater should be credited on those new sentences for the years he spent in jail awaiting trial.
COA splits over suggestive photo array and ineffective assistance of counsel
State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)
A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault. Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and (2) trial counsel was not ineffective for failing to impeach the victim with her inconsistent statement. Judge Dugan would reverse on these issues and grant a new trial.
Defendant’s consent to a PBT was voluntary
State v. Terence S. O’Haire, 2021AP564, District 4, 11/4/21, (i-judge opinion, ineligible for publication); case activity (including briefs)
O’Haire argued that an officer coerced his consent to a PBT , so its results and his refusal to submit to an evidentiary breath test should have been suppressed. The officer told O’Haire that he didn’t have to consent to a PBT, but then the officer threatened to take O’Haire to jail if he refused. When O’Haire hesitated, the officer ordered him to turn around and place his arms behind his back. The court of appeals held that the officer’s threat did not vitiate O’Haire’s consent.
COA affirms termination of a “great mom’s” parental rights
State v. T.E.-P., 2021AP1473, 11/9/21, District 1 (1-judge, ineligible for publication); case activity
There’s no online access to briefs in TPR appeals, so we can’t check the court of appeals’ characterization of T.E.-P.’s appeal. Allegedly, she conceded that the circuit considered all 6 “best interest of the child” factors in §48.426(3) and asked the court of appeals to reweigh them. The court of appeals deferred to the circuit court’s weighing of the factors and evidence under State v. Margaret H., 2000 WI 42, ¶¶29, 35, 234 Wis. 2d 606, 610 N.W.2d 475.
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.