On Point: 46. WI Court of Appeals

State v. Patrick A. Keller, 2021 WI App 22; case activity (including briefs)

Keller was convicted of causing mental harm, as a party to a crime, to his stepdaughter, who has autism. During his trial, the circuit court admitted statements made by non-testifying confidential reporters to Child Protective Services access workers. In a published decision, the court of appeals holds that these statements were not made for the primary purpose of gathering evidence to prosecute Keller, so the Confrontation Clause does not apply.

State v. Joseph G. Green, 2021 WI App 18; case activity (including briefs)

SCOW recently declared parts of §971.14 unconstitutional. See State v. Fitzgerald,  2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165 and our post here. The statute allowed the government to administer unwanted antipsychotic medication to a defendant to render him competent for trial in violation of  Sell v. United States, 539 U.S. 166 (2003). Here in Green’s case the court of appeals describes the evidence the State must present, and the findings the circuit court must make, before ordering involuntary medication. It also clarifies the procedures involved in appealing an involuntary medication order.

County of Green Lake v. Lori Melchert, 2020AP473, District 2, 2/24/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Melchert’s challenge to a prior OWI that was improperly treated as a first offense comes way too late under City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, and City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463.

S.K. v. S.S., 2020AP277, District 3, 2/26/21 (one-judge decision; ineligible for publication); case activity (briefs not made available)

S.S. (or “Susan,” to use the court’s pseudonym) isn’t entitled to a new TPR grounds trial based on her trial attorney’s failure to object to the admission of testimony she argues was irrelevant “other-acts” evidence. Even if trial counsel was deficient for failing to object (and the court doesn’t necessarily agree that’s the case (¶16 n.4),

State v. Timothy D. Wright, 2020AP1578, 2/25/2021, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wright worked at Christmas Mountain. Over the course of a couple of months he allegedly directed several racist and threatening rants at colleagues, including threats to kill some of them. A supervisor eventually called the police, and Wright was fired and charged with four counts of disorderly conduct. He eventually pleaded to two with the other two read in. The circuit court ordered Wright to pay $14,755 in restitution to the corporation that owns Christmas Mountain at $100 per month. Wright argues this was improper for three reasons: because the corporation was not statutorily a “victim” of his conduct; because the claimed damages–the cost to hire armed guards after he was fired–were not “special damages … which could be recovered in a civil action”; and because the circuit court failed to consider his inability to pay.

On February 24, 2021, the court of appeals ordered publication of the following criminal law related cases:

State v. C.G., 2021 WI App 11 (rejecting claim of First Amendment interest in legal name change sought by transgender person)

State v. Nhia Lee, 2021 WI App 12 (charges dismissed due to delay in appointing counsel)

State v.

State v. Marshun Dante Jackson, 2019AP2091, 2/17/21, District 3 (not recommended for publication); case activity (including briefs)

Jackson pleaded to being part of a conspiracy to commit fraud (passing bad checks) against a bank in Dunn County. Then he was charged in St. Croix county with committing fraud against a bank there (initially this was also charged as a conspiracy, but ultimately he pleaded to the fraud itself as party to the crime). Both offenses occurred on the same date, and Jackson claims that the dual prosecutions violated both his constitutional right against double jeopardy and a statutory provision forbidding conviction of both conspiracy to commit a crime and the underlying crime itself. The court of appeals rejects both claims, holding that the conspiracy covered by the Dunn County charge didn’t encompass the acts in St. Croix County.

State v. Michael A. Rakel, 2017AP2519, 2/17/21, District 1 (not recommended for publication); case activity (including briefs)

Michael Rakel was convicted of the 1st degree reckless homicide of Andre Taylor, who had a teenage daughter. Taylor was under a court order to pay child support to her. The court of appeals held that Rakel must now pay restitution in an amount equal to Taylor’s child support obligation.  However, the record was unclear about whether the mother of Taylor’s daughter was eligible to receive the restitution payment for the daughter. The court of appeals remanded the case for further proceedings on that issue.

State v. James A. Jones, 2021 WI App 15; case activity (including briefs)

Sometimes friends or relatives post bail so that a loved one charged with a crime can be released. This published decision holds that when charges are dismissed and read in at sentencing, and the court doesn’t order restitution on those charges, the bond money must be returned to the payors. This rule applies even to global plea deals where the defendant pleads “no contest” to and is ordered to pay restitution on some charges, but other charges are dismissed and read in without a restitution order.

State v. Omar S. Coria-Granados, 2019AP1989-CR, District 4, 2/11/21 (not recommended for publication); case activity (including briefs)

In this child sexual assault the circuit court denied the state’s motions to admit other-acts evidence under § 904.04(2) and to allow the use of an audiovisual statement of a complainant under § 908.08. In a long (39 page) decision addressing the multiple legal questions and fact specific issues, the court of appeals reverses the circuit court’s other-acts order but affirms the denial of the motion to admit the audiovisual statement.