On Point: 46. WI Court of Appeals

On June 24, 2020, the court of appeals ordered publication of the following criminal law related cases:

State v. Tavodess Matthews, 2020 WI App 33 (motion to adjourn a probable cause hearing is a “preliminary contested matter” under judicial substitution statute)

State v. Adam W. Vice, 2020 WI App 34 (confession given after polygraph ordered suppressed)

State v.

State v. Dawn J. Levanduski, 2020 WI App 53; case activity (including briefs)

This published decision resolves an issue arguably left open by Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).  The court of appeals holds that when an officer reads Wisconsin’s “Informing the Accused” form to an OWI suspect, and she refuses a blood draw, her refusal can be used against her at her OWI trial.

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.

State v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.

State v. Chad W. Kessler, 2019AP524, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Kessler went to trial on several counts, the most serious of which was burglary. Five days before trial was to begin, he asked to represent himself with his prior counsel as standby. The court granted the request after a hearing. Kessler represented himself for one day of the trial before giving the reins back to his attorney. Postconviction, he asserts that the court’s colloquy on self-representation was inadequate because it should have delved deeper into mental health concerns. He also claims he was incompetent to represent himself due to auditory hallucinations caused by schizophrenia. The court heard evidence and denied the motion, and Kessler appealed.

County of Milwaukee v. Christann Spannraft, 2018AP1553 & 1554, 6/23/20, District 1 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

This is a pro se appeal of an OWI-1st conviction. Spannraft raises three claims, all of which are rejected.

Winnebago County v. S.H., 2020 WI App 46; case activity

The court of appeals rarely publishes opinions in “fast track” cases. It took that unusual step here. The opinion strives to show the type of evidence that is sufficient for a recommitment even though the mentally ill person has taken all of her medication and has maintained stable housing and employment for two years.

State v. Nathaniel Lee Mattson, 2019AP201-CR, 6/16/20, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Mattson pled guilty to domestic battery and disorderly conduct and moved to withdraw his pleas after sentencing. Argued that he did not realize that the decision as to whether accept a plea or go to trial was exclusively his. And during the colloquy the circuit court did not inform him of that fact.

Fond du Lac v. S.N.W., 2019AP2073, 6/17/20, District 2 (1-judge opinion, ineligible for publication); case activity

We detect the unmistakable odor of SCOW bait. One of two court appointed medical experts failed to submit his examiner’s report within 48 hours before the final hearing for an original commitment of a prisoner. S.N.W. argued that this violation deprived the circuit court of competence to adjudicate the case. Alternatively, if the court retained competency, the report had to be excluded. The court of appeals disagreed. Who needs expert reports 48 before trial? Not defense lawyers striving to defend their clients’s rights. They can just wing it. This decision is at odds with several unpublished opinions and thus sets up a good petition for review.

State v. K.L.G., 2019AP658, District 1, 6/16/20 (1-judge opinion, ineligible for publication); case activity

What a bummer. K.L.G. moved to suppress an officer’s identification of him made after she looked up his booking photo from a previous incidence. The circuit court granted the motion and dismissed. The State appealed, and the court of appeals reverses.