On Point blog, page 66 of 484
COA rejects ineffective-assistance claims; rejects state’s broad guilty-plea waiver rule
State v. Skylard R. Grant, 2020AP404, 7/20/21, District 1 (not recommended for publication); case activity (including briefs)
Grant pleaded to reduced charges on the second day of his trial for homicide, being a felon in possession of a firearm, and possessing THC with intent to deliver. He claims his trial lawyer was inadequate in various ways during the trial. The court rejects Grant’s specific claims, but it also rejects the state’s expansive reading of State v. Villegas, 2018 WI App 9, 380 Wis. 2d 246, 908 N.W.2d 198. The state had argued that counsel’s alleged failings were waived by the guilty plea because they did not occur during the actual process of procuring the plea. The court of appeals says Villegas‘s waiver rule is not quite this unforgiving; it clarifies (in accord with Supreme Court case law) that claims of ineffective assistance survive a guilty plea where, “but for counsel’s errors, [the defendant] would not have pled guilty.”
IAC claim based on failure to ask for theory of defense jury instruction rejected due to absence of proposed instruction
State v. Michael J. Foster, 2020AP2149-CR, District 4, 7/29/21 (not recommended for publication); case activity (including briefs)
A defendant claiming that trial counsel was ineffective for failing to ask for a theory of defense jury instruction must propose the language the instruction should have included and establish it is a correct statement of the law. Absent such a proposed instruction, the ineffective claim will fail.
Rookie cop’s mistake in reading results of registration check didn’t invalidate stop given other facts showing reasonable suspicion
State v. Anthony Francen Harris, 2019AP1908-CR, District 3, 7/30/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Police stopped the car Harris was driving in part because Skenandore, an officer-in-training, misread the data on his in-squad computer screen and wrongly concluded that the car’s owner didn’t have a valid license. (¶¶2-3, 5-7). His mistake doesn’t matter because the officer’s other observations justified the stop.
Defense win: Defendant gets credit for time in custody on federal hold for Wisconsin criminal case conduct
State v. Avery B. Thomas, Jr., 2021 WI App 59; case activity (including briefs)
Thomas was arrested for and charged with criminal conduct while he was on federal supervision. He was held on cash bail till after his plea, when his bail was modified to a signature bond. He remained in custody, though, because the feds had put a revocation hold on him. He was eventually sentenced after revocation on the federal case, and about a month after that he was sentenced in the Wisconsin case. (¶¶2-4). The Wisconsin court erred in denying Thomas credit for the 48 days he was in custody between the date his bail was modified and the date of his federal sentencing.
Conspiracy and solicitation charges weren’t multiplicitous, sentencing judge didn’t erroneously exercise sentencing discretion
State v. Lisa Rena Lantz, 2020AP742-CR, District 3, 7/27/21 (not recommended for publication); case activity (including briefs)
Lantz was convicted of conspiring to deliver methamphetamine between September 2015 and March 2016 and of soliciting the delivery of methamphetamine in February and March 2016. The court of appeals rejects Lantz’s argument that the charges are multiplicitous. It also rejects her challenge to her sentences.
July 2021 publication list
On July 28, 2021, the court of appeals ordered publication of the following criminal law related decisions:
Ch. 51 respondent had sufficient notice of standard of dangerousness; and the evidence was sufficient to dangerousness
Trempealeau County v. B.K., 2020AP1166, District 3, 7/27/21 (one-judge decision; ineligible for publication); case activity
B.K. (“Brian”) argues he was denied procedural due process because he was not given particularized notice of which standard of dangerousness the County intended to prove at the final commitment hearing. He also contends the evidence presented at the hearing was insufficient to prove he was dangerous. The court of appeals rejects with both claims.
Defense win: Evidence at recommitment hearings was insufficient to prove dangerousness
Rusk County v. A.A., 2019AP839 & 2020AP1580, District 3, 7/20/21 (not recommended for publication); case activity (2019AP839; 2020AP1580)
A.A. appeals two recommitment orders, raising multiple constitutional issues as to both and challenging the sufficiency of the evidence of dangerousness as to one of the cases and the admission of hearsay evidence regarding the other. The court of appeals acknowledges that A.A.’s constitutional claims raise “important” and “thorny” issues about recommitment petition pleading requirements and the constitutionality of recommitment proceedings, but it it resolves both cases on the evidentiary issues. (¶¶15, 31-32).
Consent to voluntary TPR was valid
C.W. v. M.M., 2021AP330 & 2021AP331, District 3, 7/21/21 (one-judge decision; ineligible for publication); case activity
M.M.’s consent to voluntary termination of parental rights was valid and can’t be withdrawn.
Defense win: Disorderly conduct charges precluded by First Amendment
State v. Aaron Matthew Oleston, 2020AP952-CR, District 4, 7/15/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Olseston was charged with five counts of disorderly conduct for “hurling profanities and personal insults” (¶14) at Janesville police officers as they came and left the police station, as well as filming some of the encounters. Three of the five counts can’t be prosecuted because Oleston’s conduct was protected by the First Amendment; the other two can be, because they went beyond protected speech.