On Point blog, page 91 of 485
Totality of circumstances supported request for PBT
State v. David William Krumm, 2019AP243-CR, District 3, 5/5/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Under § 343.303 and County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999), there was probable cause to believe Krumm was operating while intoxicated, so police could request he submit to a preliminary breath test.
COA holds no speedy trial violation; most delays were attributable to defendant
State v. Ronald Eugene Provost, 2020 WI App 21; case activity (including briefs)
It’s unclear why this opinion is recommended for publication. Best guess is that is provides a (rather thin) gloss on the “systemic breakdown” exception to the rule that delays attributable to defense counsel don’t weigh in favor of a speedy trial violation. The court cites and adopts a statement from a New Mexico court that defense counsel’s delays represent a “systemic breakdown” only when they are caused by “problems that are both institutional in origin and debilitating in scope.” (¶40). Sounds like a slightly longer way of saying “systemic breakdown,” no?
Failing to raise joint-account defense to embezzlement charge wasn’t ineffective
State v. Phyllis M. Schwersenska, 2018AP1619-CR, District 4, 4/30/20 (not recommended for publication); case activity (including briefs)
Schwersenska was convicted of embezzling money from a joint bank account she held with her daughter, H.R. The court of appeals holds trial counsel wasn’t ineffective for failing to raise the defense that, as joint owner of the account, none of the money in the account belonged solely to H.R. and so she can’t be guilty of theft from H.R.
Partial win gets defendant evidentiary hearing on ineffective assistance claim
State v. Quaid Q. Belk, 2019AP982-CR, District 1, 4/21/20 (not recommended for publication); case activity (including briefs)
Belk moved for a new trial based on multiple allegations of ineffective assistance of trial counsel. The circuit court denied the motion without a hearing, but the court of appeals sends the case back for a hearing on one of the claims.
Defendant’s banishment from Amish area held constitutional
State v. Brandin L. McConochie, 2019AP2149-CR, District 2, 4/22/20 (1-judge opinion, ineligible for publication); case activity (including briefs)
McConochie pulled his vehicle alongside Amish buggies and exposed his genitals to the occupants within. He pled no contest to 3 counts of lewd and lascivious behavior as a repeater. As a condition of probation, the court banished him a delineated area where Amish live. McConochie argued that banishment violated his constitutional right to travel.
COA eases burden of proof for mutilation of corpse
State v. Mister N.P. Bratchett, 2018AP2305-CR, 4/22/20, District 1 (not recommended for publication); case activity
Bratchett was convicted of mutilating a corpse under §940.11(1), which requires proof that: (1) the defendant mutilated a corpse, and (2) he did so with intent to conceal a crime. On appeal, Bratchett argued that there was insufficient evidence to support the second element. Part of the problem was that State never specified the crime to be concealed.
Court of Appeals addresses a couple of common sentence credit issues
State v. Wyatt William Kontny, 2020 WI App 30; case activity (including briefs)
You’d think all the sentence credit issues would’ve been settled by now, but it’s not so! This case settles two of them.
State concedes lack of consent to search; COA affirms anyway
State v. Katelyn Marie Leach, 2019AP1830-CR, 4/16/20, District 4, (1-judge opinion, ineligible for publication; case activity (including briefs)
Leach pled “no contest” to 2nd offense operating a motor vehicle with a restricted substance. She moved to suppress evidence that she gave an officer after he told her that (a) if she only had paraphernalia or a small amount of marijuana she would just receive a municipal citation, and (b) he was going to search her regardless.
COA affirms denial of reconsideration, rejects constitutional challenge to refusal statute
State v. Aman D. Singh, 2018AP2412-CR, 4/16/20, District 4, (1-judge opinion, ineligible for publication); case activity
Singh appealed an OWI second, which the court of appeals summarily reversed and remanded with an order for the circuit court to provide the relief due under §971.13–voiding any penalty in excess of the statutory maximum. On remand, the circuit court did as ordered, Singh moved for reconsideration asking the circuit court to vacate the judgment of conviction, vacate his plea, and dismiss the case. Motion denied. Decision affirmed.
Partial defense win on 4th Amendment grounds
State v. Keith M. Abbott, 2020 WI App 25; case activity (including briefs)
After losing a suppression motion, Abbott pled “no contest” to 2nd degree intentional homicide. The court of appeals affirmed the denial of suppression for some evidence and reversed it as to other evidence. It held that Abbott’s mental breakdown during questioning did not relieve him of his duty make an unequivocal invocation of the right to counsel. And while it rejected the State’s request that it adopt a new harmless error test for cases where the defendant appeals the denial of suppression after pleading guilty, it nevertheless affirmed under the existing harmless error rule.