On Point: 46. WI Court of Appeals

Eau claire County v. J.M.P., 2020AP2014, 5/25/21, District 3 (1-judge opinion, ineligible for publication); case activity

Last term, SCOW ordered circuit courts deciding recommitment cases to make specific factual findings referencing the standard of dangerousness that supported a person’s recommitment. See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. In J.M.P., the circuit court violated this rule, so the court of appeals reversed and remanded the case for additional fact-finding. Unfortunately, this remedy creates significant burdens for people recommitted in violation of D.J.W and due process.

Milwaukee County v. T.L.T, 2020AP426, District 1, 5/18/21 (1-judge opinion, ineligible for publication); case activity

Two court-appointed examiners failed to file their reports on whether T.L.T. should be recommitted 48 hours before her final hearing. Trial counsel moved to dismiss arguing that the violation of §51.20(10)(b)’s 48-hour rule deprived the circuit court of competency to adjudicate the case.  The circuit court denied the motion, and without the defense’s agreement, adjourned the case so that counsel could review the reports before the hearing. T.L.T. appealed but the court of appeals dismissed her appeal as moot.

State v. Douglas J. Richer, 2019AP2024, 5/18/21, District 3 (not recommended for publication); case activity (including briefs)

Douglas Richer was charged in two related cases in two counties; he reached a deal with the state wherein he’d plead to just one count in Eau Claire and there’d be a joint sentencing recommendation. The plea colloquy was a thorough one; Richer expressed dissatisfaction about various aspects of the prosecution but made it very clear that he wanted to plead no-contest. After a number of clarifications the circuit court eventually accepted the plea and found Richer guilty. During sentencing (which was part of the same hearing as the plea), the prosecutor and the court took umbrage at some of Mr. Richer’s statements and, at the state’s suggestion, the court said it was “withdrawing” Richer’s plea. Richer and his counsel objected, both at that hearing and in a later written motion, but to no avail. Richer eventually entered a much less favorable bargain and received a sentence substantially longer than the one the parties had agreed to recommend.

Sheboygan County DH&HS v. S.K., 2021AP158, District 2, 5/12/21 (one-judge decision; ineligible for publication); case activity

Though § 48.424(4) says that if grounds for termination of parental rights are found, “the court shall find the parent unfit,” the circuit court’s failure to utter those words doesn’t make the TPR order invalid.

State v. Christopher D. Wilson, 2020AP1014-CR, District 1, 5/11/21 (one-judge decision; ineligible for publication); PfR granted 11/17/21; case activity (including briefs)

Police lawfully entered Wilson’s backyard under the “knock and talk” exception to the Fourth Amendment warrant requirement.

State v. G.R.H., 2020AP1638, District 1, 5/11/21 (one-judge decision; ineligible for publication); case activity

 A juvenile adjudged delinquent for certain sex offenses must register as a sex offender unless the court permanently stays the requirement under the standards established in §§ 301.45(1m)(e) and 938.34(15m) and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1. The circuit court in this case properly applied those standards when it declined to stay the registration requirement for G.R.H.

State v. War Nakula-Reginald Marion, 2019AP2206-CR & 2019AP2207-CR, District 1, 5/11/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Marion was given maximum consecutive sentences on multiple misdemeanor convictions, all consecutive to the reconfinement ordered after his ES in a prior case was revoked due to the new convictions. Appointed postconviction counsel filed a no-merit appeal under § 809.32 and the court of appeals affirmed the convictions.

Sheboygan County v. M.W., 2021AP6, 5/12/21, District 2 (one-judge decision; ineligible for publication), petition for review granted, 9/14/21, reversed, 2022 WI 40; case activity

For more than a year now, Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, has required circuit courts imposing ch. 51 commitments to identify which statutory form of dangerousness has been proved. A little over a month ago, the court of appeals decided Rock Co. DHS v. J.E.B., holding the circuit court failed to satisfy this requirement. But the appellate court didn’t undo the commitment: it just remanded for the circuit court to decide whether the facts satisfied any of the five standards. It did this even as it declined to address J.E.B.’s other challenge: that there was insufficient evidence of any form of dangerousness. This latter claim would have required dismissal of the petition. Is the court of appeals free to refuse to consider a litigant’s claim–a claim that would that would dispose of the entire case–for no other reason than that it is granting some lesser relief?

Rock County v. J.J.K., 2020AP1085, 4/29/21, District 4, (1-judge opinion, ineligible for publication), case activity

This is an appeal from the initial commitment and involuntary medication order entered against J.J.K. The court of appeals affirmed both contrary to published precedent on the rule against hearsay, the plain error doctrine, and procedural and substantive due process.

Rock County v. J.J.K., 2020AP2105, District IV, 5/6/21 (1-judge opinion, ineligible for publication); case activity

This is the sequel to the Rock County v. J.J.K.. 2020AP1085 above. The decision is alarming because the circuit court found J.J.K. dangerous enough for a recommitment based on the 5th standard, but the court of appeals affirmed based on the 4th standard. The opinion also further highlights the need for SCOW to elaborate its decision in Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875. Specifically, can a court order involuntary medication for a person undergoing recommitment without evidence that he is dangerous as defined by §51.61(1)(g)3?