On Point: 46. WI Court of Appeals

State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs)

The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then denied Atwater’s postconviction motion because he couldn’t get trial counsel to the hearing and couldn’t prevail without trial counsel’s testimony. The court of appeals holds the circuit court erroneously exercised its discretion by rejecting Atwater’s request for remote testimony by trial counsel.

State v. Kendell Marcel White, 2020AP588-CR, District 1, 2/2/21 (one-judge decision; ineligible for publication); case activity (including briefs)

In the course of a traffic stop based on a bad parking job, excessively tinted windows, and no visible plates, police searched the car and found a concealed weapon. The court of appeals holds the search was unreasonable under the totality of the circumstances.

State v. C.G., 2021 WI App 11; petition for review granted 4/27; case activity

Ella–a pseudonym–was adjudicated delinquent for a sexual assault committed when she was 15. Ella’s legal name is masculine in association; during her juvenile disposition she was transitioning to a female identity. In this appeal she challenges the circuit court’s refusal to stay sex offender registration under Cesar G., and also submits that the registry’s prohibition on changing her legal name violates her First Amendment right to express her identity. The court of appeals upholds the circuit court’s discretionary decision on the former claim; on the latter it offers three blithe paragraphs of discussion before casually announcing–in a decision that is set to be published, and thus binding–that requiring a transgender woman to use a man’s name implicates no First Amendment concerns whatsoever.

State v. Shondrell R. Evans, 2020AP286-CR, District 4, 1/28/21 (not recommended for publication); case activity (including briefs)

Evans was seized under the Fourth Amendment when two police officers parked their marked squad cars in a way that restricted—though didn’t totally obstruct—his ability to drive away, shined their headlights and spotlights on his car, and exited their squad cars and approached Evans’s car. Because the police lacked reasonable suspicion to detain Evans, the resulting search of his car was unlawful.

State v. Samuel Martin Polhamus, 2019AP2339-CR, 1/28/21, District 4 (1-judge opinion, ineligible for publication); case activity

The State charged Polhamus with bail-jumping and disorderly conduct. A jury acquitted on the first charge and convicted on the second. Polhamus appealed pro se and, according to the court of appeals, appeared to argue that the State’s evidence of his alleged disorderly conduct both inside and outside of a bar was insufficient.

State v. V.R., 2020AP798 & 2020799, 1/26/21, Distrct 1 (1-judge opinion; ineligible for publication); case activity

This is an appeal from an order terminating V.R.’s parental rights. The court of appeals rejected a no-merit report because the record revealed that neither defense counsel nor the circuit court had discussed the meaning of a “substantial parental relationship” with V.R. before she pled no contest to failure to assume parental responsibility. On remand, V.R moved to withdraw her no contest plea and filed an affidavit. She lost her motion and now her appeal because she did not appear at the plea withdrawal hearing.

On January 27, 2021, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Jalen F. Gillie, 2020AP372, 1/20/21, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer stopped Gillie’s car on a “dark night” because of “suspected illegal window tint.” An eventual search of the car turned up a gun and Gillie was convicted of carrying a concealed weapon without a permit. On appeal he renews his argument that there was no reasonable suspicion for the stop. The court of appeals agrees with him on this, and so reverses his conviction (and declines to address his other Fourth Amendment claims connected to the encounter).

State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)

Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station.

State v. Nhia Lee, 2021 WI App 12, case activity (including briefs)

This is an important decision for areas of Wisconsin where there is a shortage of defense lawyers. In 2018, when the private bar rate was $40, Lee was charged with felonies in Marathon County and then held for 101 days without counsel while the SPD contacted over 100 attorneys to take his case. Meanwhile, the circuit court repeatedly extended the 10-day deadline for holding a preliminary hearing. He finally got one 113 days after his initial appearance. In a decision recommended for publication, the court of appeals held that the circuit court failed to establish it had good cause to extend the 10-day deadline. It also sets forth factors circuit courts should consider in future cases involving delay in the appointment of counsel for a preliminary hearing.