On Point: B. Published opinions

State v. Todd N. Triebold, 2021 WI App 13; case activity (including briefs)

Triebold was convicted of child sexual assault in Wisconsin and subject to lifetime sex offender registration. He moved to Minnesota and notified the Wisconsin DOC of his address. But he moved again and failed to notify either Wisconsin or Minnesota of his change in address. He was separately convicted of violating the sex offender registration laws of Minnesota and Wisconsin. This appeal concerns his challenges to his Wisconsin conviction. The court’s decision is recommended for publication.

On December 23, 2020, the court of appeals ordered publication of the following criminal law related case:

State v. Jack B. Gramza, 2020 WI App 81 (mandatory minimum for OWI trumps SAP early release requirement)

State v. Benjamin J. Klapps, 2021 WI App 5; case activity (including briefs)

The circuit court granted the state’s petition to revoke Klapps’s conditional release under § 971.17(3)(e), citing in particular the report of a prior examiner who didn’t testify at the revocation hearing and whose report wasn’t entered into evidence. (¶¶2-13). Klapps argued the trial judge had prejudged his case based on the previously filed report,

Jama I. Jama v. Jason C. Gonzalez, 2021 WI App 3; case activity (including briefs)

In Wisconsin, a person who brings a legal malpractice suit against the lawyer who represented the person in a criminal case must prove, among other things, that he or she is actually innocent of the criminal charge. Skindzelewski v. Smith, 2020 WI 57, ¶10, 392 Wis. 2d 117, 944  N.W.2d 575; Tallmadge v. Boyle, 2007 WI App 47, ¶¶15, 18, 300 Wis. 2d 510, 730 N.W.2d 173; Hicks v. Nunnery, 2002 WI App 87, ¶¶34-49, 253 Wis. 2d 721, 643 N.W.2d 809. But what happens in a case of “split innocence,” when the person is guilty of some of the crimes but not others? In a case of first impression, the court of appeals holds the person need only prove his innocence of the specific criminal charges as to which he alleges the lawyer performed negligently.

State v. Thomas A. Nelson, 2021 WI App 2; 12/9/20, District 2; case activity (including briefs).

This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it.  Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it receives into evidence out-of-court statements by someone who does not testify at trial, if the statements are “testimonial” and if the defendant has not had an opportunity to cross-examine the declarant of the statement.  Yet in this case, the court of appeals holds that Nelson’s confrontation rights were not violated when the circuit court admitted a “Sexual Abuse Evaluation” requested by the police for the purpose of collecting evidence even though the author of the evaluation did not testify at trial.

On November 19, 2020, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Manuel Garcia, 2020 WI App 71 (voluntary statement obtained in violation of Miranda can’t be used in state’s case-in-chief—period)

State v. Alan S. Johnson, 2020 WI App 73 (“Marsy’s Law” gives alleged victim standing to intervene in opposition to defendant’s Schiffra/Green motion)

State v. Jack B. Gramza, 2020 WI App 81; case activity (including briefs)

If an inmate serving the initial confinement (IC) portion of a bifurcated sentence completes the Substance Abuse Program (SAP), § 302.05(3)(c)2. mandates that the sentencing court “shall” modify the inmate’s sentence by converting the remaining period of IC to extended supervision (ES) so that the inmate is released from confinement to ES. The court of appeals holds this mandate doesn’t apply to an inmate who is serving a mandatory minimum term of IC for an OWI offense if the inmate hasn’t yet served the mandatory minimum term.

State & T.A.J. v. Alan S. Johnson, 2020 WI App 73, petition to review granted, 2/26/21; case activity (including briefs)

This is the first of what will likely be a series of appellate court decisions that re-make criminal litigation in light of “Marsy’s Law,” the recently-passed crime victims’ rights amendment to Article I, § 9m, of the Wisconsin constitution.

On October 29, 2020, the court of appeals ordered the publication of the following criminal law related opinions:

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.