On Point: 46. WI Court of Appeals

State v. Rosalee M. Tremaine, 2016AP1963-CR, 2/27/20, District 4, (1-judge opinion, ineligble for publication); case activity (including briefs)

An officer stopped Tremaine for a traffic violation and called another car to bring some warning forms. While the officer was filling them out, another officer arrived with a dog. The first officer handed Tremaine the forms, but did not allow her to leave. Then the third officer conducted a sniff, which led to a search of Tremaine’s purse revealing marijuana and a pipe. Defense counsel filed a suppression motion, but made the wrong argument. The court of appeals now finds him ineffective.

State v. Lois M. Bertrand, 2019AP1240-CR, 2/26/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs).

The 4th Amendment prohibits a warantless entry into the curtilage of a home unless it is supported by probable cause and exigent circumstances. State v. Weber, 2016 WI 96, ¶19, 372 Wis. 2d 202, 887 N.W.2d 554. In this case, the officer lacked a warrant, probable cause and exigent circumstances when he seized Bertrand in the garage attached to her house. Thus, the circuit court should have granted the motion to suppress evidence obtained as a result of her seizure.

State v. Ryan C. Diehl, 2020 WI App 16; case activity (including briefs)

At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.

State v. Bartosz Mika, 2019AP1488, District 2, 2/19/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court appropriately exercised its discretion in continuing Mika’s refusal hearing so the state could call another witness, and the testimony of the additional witness established police had reasonable suspicion to stop Mika.

State ex rel. Michael J. Vieth v. John Tate II, 2018AP1525, District 4, 2/13/20 (not recommended for publication); case activity (including briefs)

Lawyers handling petitions for a writ of certiorari to review administrative decisions (or any other extraordinary writs, for that matter) should be aware of this decision. It holds that, under the electronic filing system statutes, the administrative agency’s attorney registering as a user does not relieve a petition of the obligation to personally serve the agency with the document initiating the proceeding.

Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity

N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless. 

State v. Jacqueline A. Ziriax Anderson, 2018AP2410-CR, District 3, 2/11/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The state offered Anderson a deal: plead to OWI 2nd and it would recommend the minimum mandatory penalties. The state made that offer because the arresting officer had resigned from the department due to some “mental health issues” and the prosecutor apparently wasn’t eager to call him as a witness. Anderson’s lawyer found this out immediately before Anderson entered her plea—but didn’t tell Anderson. She learned about it afterward. (¶¶3-4, 8-11). While trial counsel performed deficiently by failing to tell Anderson that information before she pled, that doesn’t entitle her to plea withdrawal because she fails to show she would have insisted on going to trial if trial counsel would have told her, as required by State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).

State v. Angel Mercado, 2020 WI App 14, petition for review granted, 5/19/20; reversed 1/20/20; case activity (including briefs)

The court of appeals orders a new trial for Mercado on the grounds the circuit court erred in admitting the video statements of three children who accused him of sexually assaulting them. The circuit court didn’t comply with the requirements of § 908.08(2) and (3) in admitting the videos, and the videos also weren’t admissible under the residual hearsay exception or as prior inconsistent statements.

State v. Thomas Michael Barrett, 2020 WI App 13; case activity (including briefs)

The court of appeals rejects Barrett’s facial and void-for-vagueness challenges to Wisconsin’s prohibition on firearm silencers, § 941.298.

State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.