On Point: 46. WI Court of Appeals

On November 20, 2019, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Keith H. Shoeder, 2019 WI App 60 (a riding lawn mower is a “motor vehicle for purposes of the OWI statute)

State v. Larry W. Olson, 2019 WI App 61 (the 72-hour filing deadline for a  petition to revoke NGI conditional release is mandatory)

State v.

State v. Z.J., 2019AP1623-1626, District 1, 11/19/19, (1-judge opinion, ineligible for publication); case activity

All TPRs are sad. But this one really highlights the Catch 22 that poverty can create for a parent. Z.J., mother of 4, was struggling with drug and alcohol abuse. The State sought to terminate her parental rights for these and other reasons. But the real issue is whether the circuit court properly exercised its discretion when it entered a default judgment against her at the grounds phase.

V.A. v. M.W.P., 2019AP1098, District 2, 11/20/19 (one-judge decision; ineligible for publication); case activity

V.A. petitioned to terminate the parental rights of her child’s father, M.W.P., who pled no contest to abandonment. M.V.P. argues the circuit court erroneously exercised its discretion in ordering termination because it failed to dismiss the proceeding or give sufficient weight to the fact that V.A.’s husband, M.A., confronted the child’s GAL about his recommendation against termination, telling the GAL he’d “have blood on his hands.” (¶¶3, 13). No erroneous exercise of discretion here, says the court of appeals.

State v. A.L.M., 2019AP1599, 2019AP1600, & 2019AP1601, District 1, 11/19/19 (one-judge decision; ineligible for publication); case activity

After A.L.M. pled no contest to failing to assume parental responsibility, the circuit court terminated his parental rights. The evidence was sufficient to support that conclusion.

State v. Shawn A. Anderson, 2019AP173-CR, District 3, 11/13/19 (not recommended for publication); case activity (including briefs)

The circuit court’s sentencing remarks considered in their entirety showed the court properly exercised its discretion in ordering Anderson to be subject to lifetime supervision under § 939.615.

State v. E.F., 2019AP1559-1561, 11/12/19, District 1, (1-judge opinion, ineligible for publication); case activity

The trial court never uttered the words “best interest of the child” at the dispositional phase of this TPR case. No matter, says the court of appeals, “magical” or “talismanic” words aren’t necessary. The trial court’s decision was “infused with articulated concern” for E.F.’s children. That’s enough. Opinion, ¶¶17-18.

State v. A.C.M., 2018AP2423-2424, 11/12/19, District 1 (1-judge opinion, ineligible for publication); case activity

A.C.M.’s trial lawyer did not call her psychiatrist to testify about her mental health or her medication compliance–evidence that was important to the issue of whether she posed a safety risk to her children. The court of appeals held that even if counsel should have called the doctor, her failure to do so didn’t prejudice A.C.M.

State v. Brian L. Halverson, 2019 WI App 66; petition for review granted 3/17/20; affirmed 1/29/21; case activity (including briefs)

Until now, Wisconsin held that a person who is interviewed by law enforcement while incarcerated is per se in custody and thus must receive a Miranda warning. State v. Armstrong, 223 Wis. 2d 331, 588 N.W. 2d 606 (1999). This published court of appeals’ decision holds that the SCOTUS effectively overturned Armstrong in Howes v. Fields, 565 U.S. 499 (2012). Going forward, courts must determine whether an inmate is in custody by analyzing the totality of the circumstances surrounding his interrogation.

State v. Jeffrey L. Ionescu, 2019 WI App 68; case activity (including briefs)

A homeowner told police that he found a burglar in his car and saw him run west across his yard. About 10 minutes later, officer and a trained tracking dog headed in that direction for about 30 minutes. The officer saw footprints, and the dog detected scent, off and on along the way. Eventually they reached the yard of burglar’s mother and entered it without a warrant. She let them enter her home where they found Ionescu. Was this pursuit cold, warm or hot?

State v. Amanuel A. Ayele, 2019AP432, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Ayele pleaded to a battery after an attack on his father, with whom he lived. The state had charged the crime as an incident of domestic abuse carrying a surcharge under Wis. Stat. § 973.o55 but moved, as part of the plea deal, to remove this provision. The court wouldn’t go along though, and Ayele pleaded anyway. What the court did do is waive the actual imposition of the surcharge under § 973.055(4). But the judgment of conviction still notes “Domestic Abuse Assessments” in the description of the charge, and Ayele wants the notation struck.