On Point blog, page 86 of 490
Evidence at ch. 51 extension hearing sufficient to prove dangerousness, need for medication order
Portage County v. L.E., 2020Ap1239-FT, District 4, 10/29/20 (one-judge decision; ineligible for publication); case activity
The evidence presented at L.E.’s ch. 51 extenstion hearing was sufficient to prove she was dangerous and was not competent to refuse medication.
Subsequent mitigating action didn’t extinguish factual basis for reckless endangering conviction
State v. Jonathan N. Reiher, 2019AP2321-CR, District 4, 10/29/20 (not recommended for publication); case activity (including briefs)
The court of appeals rejects the defendant’s claim that his pleas to reckless endangerment lacked a factual basis.
Trial counsel not ineffective for failing to challenge delay in search seized computer
State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)
The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.
October 2020 publication list
On October 29, 2020, the court of appeals ordered the publication of the following criminal law related opinions:
Police didn’t unreasonably execute warrant for blood draw
State v. William Lawrence Bonfiglio, 2019AP188-CR, District 4, 10/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Police immobilized Bonfiglio because they thought he was going to resist the blood draw authorized under the search warrant they had obtained. The court of appeals rejects Bonfiglio’s claims this constituted an unreasonable execution of the warrant.
Challenges to sexual assault conviction rejected
State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)
Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.
COA clarifies when Chapter 51’s 72-hour clock begins for persons detained on criminal charges
Columbia County v. J.M.C., Jr., 2020AP1001, District 4, 10/22/20 (1-judge opinion, ineligible for publication); case activity
J.M.C. was taken to jail on possible criminal charges. Two days later, the County filed a Chapter 51 petition for his commitment. Section 51.20(7) provides that the circuit court must hold a probable cause hearing within 72 hours of taking a person into custody under §51.20. The circuit court dismissed the petition for violation of the 72-hour rule, and the County appealed arguing that the circuit court erred in determining what triggered 72-hour clock triggered.
Court of Appeals certifies important cell phone search issues
State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)
Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.
Challenges to implied consent law and refusal go nowhere
Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.
Defense win! Court of appeals reverses summary judgment TPR due to fact issues on abandonment
Racine County DHS v. W.L.J., 2020AP197-198, October 14, 2020, District 2 (1-judge opinion, ineligible for publication); case activity
Good news for defense lawyers in TPR cases. The court of appeals means business. This is the third time in less than a year that it has reversed a termination of parental rights order due to a circuit court error on the question of whether a parent “abandoned” his or her child.