On Point: 46. WI Court of Appeals

State v. Tavodess Matthews, 2020 WI App 33; case activity (including briefs).

Section 801.58(1) states that if a party to a civil action files a judicial substitution request “preceding the hearing of any preliminary contested matter” and not later than 60 days after service of the summons and complaint then the request must be granted.  A “preliminary contested matter” refers to a “substantive issue” going to”the merits of the case.” The court of appeals holds that a motion to adjourn a probable cause hearing  in a Chapter 980 case fits that bill.

State v. Gary R. Schumacher, 2019AP1261-CR, District 4, 5/7/20, (1-judge opinion, ineligible for publication); case activity (including briefs)

Schumacher was convicted of OWI with a prohibited alcohol content in connection with an accident at 8:45 p.m. His blood was drawn at 10:56 p.m., and tests showed a BAC of .171, well above his legal limit of 0.08. The sole issue on appeal was whether Schumacher’s trial counsel had adequately cross-examined Kristin Drewieck, a chemist with the Wisconsin State Laboratory of Hygiene about her estimates of Schumacher’s BAC at 8:45 p.m.

Town of Waterford v. Christopher Pye, 2019AP737, 5/6/20, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects the municipality’s argument that the doctrine of equitable tolling applies to the two-year statute of limitation for bringing a forfeiture action.

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.

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?

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.

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.

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.

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.

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.