On Point: 46. WI Court of Appeals

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.”

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.

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)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.

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.

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.

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.

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.

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.