On Point blog, page 62 of 487
Strangulation and suffocation statute held constitutional
State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)
Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.
CoA rejects proposed guardianship and NTIJ challenge to TPR order
State v. A.P., 2021AP1146-47, 12/7/21, District 1 (1-judge opinion, ineligible for publication); case activity
A.P. appealed orders terminating his parental rights to his two children. The court of appeals rejected his claim that the circuit court erroneously exercised its discretion when it refused to make his mother the guardian of the children and his new trial in the interests of justice claim.
CoA finds sufficient evidence for initial commitment under 3rd standard
Marathon County v. J.A.E., 2021AP898, 12/7/21, District 3, (1-judge opinion, ineligible for publication); case activity
For an initial commitment under §51.20(1)(a)2.c., the circuit court must find clear and convincing evidence that a mentally ill person’s judgment is impaired such that there is “a substantial probability of physical impairment or injury to himself or others.” The court of appeals held that James’s hallucinations during his examinations, his refusal of medication, and his use of methamphetamine satisfied this standard.
Knowing possession of trace heroin imputed from track marks and paraphernalia
State v. Nakyta V.T. Chentis, 2022 WI App 4; case activity (including briefs)
To convict someone of possession of a controlled substance, the State must prove both that he was in possession of the substance and that he knew or believed he was in possession of it. State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973). See also Wis JI-Criminal 6000. In a published opinion, the court of appeals holds Chentis knew he possessed a trace amount of heroin–undetectable until the State Crime Lab applied a special chemical to paraphernalia–based on fresh track marks on his arm.
Defense win! COA finds evidence insufficient for recommitment
Portage County v. C.K.S., 2021AP1291-FT, 11/24/21, District 4, (1-judge opinion, ineligible for publication); case activity
The circuit court recommitted C.K.S. but apparently neglected to specify the applicable standard(s) of dangerousness. C.K.S. appealed arguing that the court violated D.J.W. and that the county’s evidence of dangerousness was insufficient. The court of appeals declined to address the D.J.W. error. Instead, it reviewed the county’s evidence of dangerousness and held it insufficient under the only standards that could apply: the 1st, 3rd, and 4th standards.
COA asks SCOW to decide whether things that happen simultaneously happen on two “separate occasions”
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?
COA: circuit court erred in imposing jail contempt sanction for refusing to give phone passcode
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).
Court of appeals excuses state’s failure to file any brief; upholds denial of expunction
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.
November 2021 publication list
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)
Summary judgment on TPR grounds reversed
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.