On Point blog, page 85 of 485
Read-in images were “associated” with child porn conviction for surcharge purposes
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)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.
COA: officer had reasonable suspicion of OWI for stop
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:
COA affirms denial of plea withdrawal though circuit court applied the wrong standard
State v. Brian Anthony Taylor, 2019AP1770-CR, District 1, 7/28/20 (not recommended for publication); case activity (including briefs)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.”
No error in entering default judgment in TPR based on parent’s conduct
State v. L.C., 2020AP796, District 1, 7/28/20 (one-judge decision; ineligible for publication); case activity
Whether to grant a default judgment in a TPR proceeding as a sanction for a parent’s egregious conduct is left to the circuit court’s discretion, and the circuit court properly exercised its discretion in defaulting L.C.
Defense win! Judge’s statements during trial showed objective bias against defendant
State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)
Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.
COA affirms verdict finding violation of harassment injunction and stringent probation terms
State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared.
Allegations in complaint provided sufficient factual basis for guilty pleas to invasion of privacy charges
State v. Jeffrey T. Ziegler, 2019AP858-CR & 2019AP859-CR, District 4, 7/23/20 (one-judge decision; ineligible for publication); case activity (including briefs)
To commit invasion of privacy in violation of § 942.08(2)(d), a person must, among other things, look into another’s dwelling “for the purpose of sexual arousal or gratification….” § 942.08(2)(d)1. Contrary to Ziegler’s claim, the allegations in the complaints in his cases provided a sufficient factual basis for this element, and thus his guilty pleas stand.
Court of Appeals affirms denial of ch. 980 discharge petition without a trial, but does not clarify legal standard
State v. Rodney Timm, 2019AP1922, District 3, 7/21/20 (not recommended for publication); case activity (including briefs)
If you handle ch. 980 cases you know that 2013 Wis. Act 84 changed the legal standard under § 980.09 for determining whether a person committed under ch. 980 is entitled to a discharge hearing. But you don’t know what the Act 84’s revisions to the standard mean—because no one knows, not even the supreme court. The court of appeals doesn’t decide what the standard means in this case, either, but it teases enough thread out of the tangle created by Act 84 to conclude Timm isn’t entitled to a discharge hearing.
Defendant is denied a new trial, but wins resentencing
State v. Bobby L. McNeil, 2019AP467-CR & 2019468-CR, District 1, 7/21/10 (not recommended for publication); case activity (including briefs)
McNeil was convicted of drug offenses, obstructing, and bail jumping after a trial in two consolidated cases. His challenges to the joinder of the cases and to various evidentiary issues are rejected, but he prevails on the challenge to his sentence because the circuit court relied on inaccurate information at sentencing.
Postconviction DNA analysis request was properly denied
State v. Antonio L. Simmons, 2018AP591-CR, District 1, 7/21/20 (not recommended for publication); case activity (including briefs)
Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting.