On Point: 46. WI Court of Appeals

State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.

State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.

State v. David M. Hay, 2020 WI App 35; case activity (including briefs)

Hay was pulled over in the early morning and blew a .032 on the PBT. He had several drunk-driving priors, so it would be illegal for him to drive with a BAC over .02. The officer never sought a warrant; instead he searched the car (though another officer on-scene could have done that), waited for another officer to show up to “sit” with the vehicle until a tow truck came, then headed to the hospital with Hay. Only then–about an hour after the initial stop–did the officer ask Hay whether he’d agree to a blood test. When Hay refused, the officer, in consultation with an ADA, decided the situation was exigent. The thinking was that given the low PBT result, further passage of time might reduce Hay’s BAC to .00 thus and make a blood test useless as evidence. So, the officer ordered a warrantless blood draw. Because there was only one phlebotomist in the hospital, that draw didn’t actually happen until 35 minutes had passed. Hay had no alcohol in his blood, but there was cocaine, so he was charged with the “restricted controlled substance” variety of OWI. He moved for suppression, the circuit court granted it, and the state appealed.

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.