On Point: 46. WI Court of Appeals

State v. Morgan E. Geyser, 2020 WI App 58; case activity (including briefs)

Morgan Geyser, one of the two 12 year old defendants in the Slenderman case, was charged in adult court with attempted 1st degree intentional homicide. At her preliminary hearing, the court found probable cause that she committed a crime for which it had exclusive jurisdiction. On appeal, Geyser argued that the adult court had found the facts necessary to mitigate attempted 1st degree homicide to attempted 2nd degree homicide and thus it lost jurisdiction. She also argued that her custodial statements to police should have been suppressed because her Miranda waiver was not knowing, intelligent and voluntary. The court of appeals rejected both arguments.

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

State v. Heather Jan VanBeek, 2019AP447, 8/12/20, District 2; certification granted 9/16/2020; case activity (including briefs)

VanBeek was sitting with a companion in her parked truck when an officer approached. There’d been a tip that people were sitting in the truck for an hour and that someone had come to the truck with a backpack, then departed. The officer asked a few questions, got satisfactory answers, and then asked for ID, purportedly for his report of the contact. The truck’s occupants were reluctant to hand over their licenses, but the officer insisted, and they did. He held onto them for more than five minutes and summoned a drug dog, who eventually alerted. At some point in this time frame, reasonable suspicion developed, but it wasn’t present when the officer took the IDs. So, was the encounter, at that point, “consensual” (as the state argues) or were the truck’s occupants seized–which, without reasonable suspicion, would be unconstitutional?

State  v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)

The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.

Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity

Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement.  Hopefully, R.J. will move for reconsideration or petition for review.

State v. Tory J. Agnew, 2019AP1785-CR, District 4, 7/30/20 (not recommended for publication); case activity (including briefs)

The court of appeals affirms the structure of a bifurcated sentence for an unclassified felony to which a sentence enhancer applied, even though the sentence imposed runs afoul of the statutes and prior case law.

On July 29, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Dawn M. Prado, 2020 WI App 42 (striking down implied consent law for unconscious drivers)

State v. Mark J. Bucki, 2020 WI App 43 (dog sniff evidence need not be corroborated to be admissible)

Winnebago County v.

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

State v. Christopher J. Vaaler, 2019AP2174, 8/6/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer pulled Vaaler over in the very early morning for not having his headlights on. Per the court of appeals, Vaaler’s unusual manner of speech, the odor of intoxicants, and the fact of an open beer next to him were enough for the officer to conduct the OWI investigation that ultimately led to Vaaler’s arrest and conviction:

State v. Brian Anthony Taylor, 2019AP1770-CR,  District 1, 7/28/20 (not recommended for publication); case activity (including briefs)

What a frustrating decision. Taylor filed a pre-sentencing motion to withdraw his plea for repeated sexual assault of a child, but the circuit court denied it applying the more stringent post-sentencing plea withdrawal standard. “No problem,” says the court of appeals, “we’ll apply the correct standard for you and affirm.”