On Point: 46. WI Court of Appeals

State v. Frank P. Smogoleski, 2019AP1780-CR, District 2, 11/18/20 (not recommended for publication); case activity (including briefs)

The state wins its appeal of two circuit court orders, one excluding the use of preliminary hearing testimony of a witness who is now dead, the other excluding other-acts evidence.

State v. Timothy M. Argall, 2020AP907-CR, District 2, 11/18/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Argall was arrested for OWI based on a plethora of evidence—viz., driving after dark without headlights, slurred speech, odor of alcohol, inability to follow questions or give direct answers, admission of drinking 4 to 6 beers, 0.201 PBT. His gripe, though, is with the pre-FST pat down that found a pot pipe in his pocket.

Waukesha County v. E.J.W., 2020AP370, 11/4/20, District 2 (1-judge opinion; ineligible for publication), petition for review granted 2/26/21; case activity

Section 51.20(11)(a) provides that an individual or his counsel must demand a jury trial at least 48 hours before the time set for his final commitment hearing. At the start of his hearing, E.J.W requested a substitution of trial counsel and a jury trial. The court granted the substitution of counsel and postponed the trial 7 days, but it would not reset the clock for demanding a jury. The court of appeal affirmed.

Waukesha County v. L.J.M., 2020AP820, 11/4/20, District 2 (one-judge decision; ineligible for publication); case activity

L.J.M. (“Lisa”) appeals the extension of her commitment under ch. 51. In a thorough opinion, the court of appeals affirms, though not without pointing out deficiencies in the county’s case and the circuit court’s decision.

Waukesha County v. I.R.T., 2020AP996, 11/4/20, District 2 (one-judge decision; ineligible for publication) case activity

The county sought to extend I.R.T.’s commitment but could not be located for a time. Eventually the court issued a capias and I.R.T. was arrested. At the extension hearing, there was testimony that after his parole in a criminal matter ended I.R.T. had become homeless and had not taken medications or communicated with the county or his “outpatient prescribers.” (¶14). A psychologist opined that I.R.T. would be dangerous if treatment were withdrawn due to his history of noncompliance with treatment and his “history of psychotic symptoms, and threatening behaviors toward others” and referred to information received from “staff” at an unnamed facility and I.R.T.’s parents. (¶16).

State v. Jack B. Gramza, 2020 WI App 81; case activity (including briefs)

If an inmate serving the initial confinement (IC) portion of a bifurcated sentence completes the Substance Abuse Program (SAP), § 302.05(3)(c)2. mandates that the sentencing court “shall” modify the inmate’s sentence by converting the remaining period of IC to extended supervision (ES) so that the inmate is released from confinement to ES. The court of appeals holds this mandate doesn’t apply to an inmate who is serving a mandatory minimum term of IC for an OWI offense if the inmate hasn’t yet served the mandatory minimum term.

Jackson County v. W.G., 2020AP961, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity

The evidence presented at a ch. 51 extension hearing is found wanting because it doesn’t establish dangerousness as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

State v. Steven L. Sternitzky, 2019AP2185-CR, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Sternitzky argues he was arrested for OWI without probable cause and that his trial on the charge was marred by the judge’s instruction to the jury regarding the presumption of intoxication and automatic admissibility of chemical test results. The court of appeals rejects both arguments.

State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)

….not “lifetime since January 1, 1989.”

State & T.A.J. v. Alan S. Johnson, 2020 WI App 73, petition to review granted, 2/26/21; case activity (including briefs)

This is the first of what will likely be a series of appellate court decisions that re-make criminal litigation in light of “Marsy’s Law,” the recently-passed crime victims’ rights amendment to Article I, § 9m, of the Wisconsin constitution.