On Point: B. Published opinions

State v. David J. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)
For Gardner: Steven P. Weiss, SPD, Madison Appellate

Gardner’s 30-year sentence is upheld as a proper exercise of discretion.

State v. Harry S. Bernstein, 231 Wis.2d 392, 605 N.W.2d 555 (Ct. App. 1999)
For Bernstein: Mary E. Waitrovich, SPD, Madison Appellate

Issue: After the state requests then withdraws a request for jury in a Ch. 980 proceeding, must trial to the court be premised on the respondent’s personal consent to this withdrawal?

Holding: Under § 980.05(2) the respondent’s consent to the state’s withdrawn assertion of jury trial need not be personal,

State v. Oto Orlik, 226 Wis.2d 527, 595 N.W.2d 468 (Ct. App. 1999)
For Orlik: Steven P. Weiss, SPD, Madison Appellate

Holding: Trial court lacks authority, under §§ 969.01 & 969.03, to impose no-contact order as condition of bail for someone who remains incarcerated. However, the separate procedure authorized in § 940.47 may be utilized in such a situation.

State v. Leo E. Wanta, 224 Wis.2d 679, 592 N.W.2d 645 (Ct. App. 1999)
For Wanta: James M. Shellow

HOLDING: Wanta argues that Wis. Stat. § 971.14(4)(b) is unconstitutional, because it requires proof of incompetence by clear and convincing evidence when the defendant claims that s/he is competent (vs. proof of competency by mere greater weight of evidence when the defendant claims incompetence). The court construes the challenge to be one of equal protection.

State v. Michael W. Farrell, 226 Wis.2d 447, 595 N.W.2d 64 (Ct. App. 1999)
For Farrell: Kevin M. Schram

Holding: Finding of incompetency subsequent to plea proceeding is a factor to consider but in and of itself neither creates doubt as to prior competency nor requires retrospective competency hearing.

State v. Tommy Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999)
For Lo: Margarita Van Nuland

Issue/Holding: “When there is a conflict between the court’s oral pronouncement of sentence and a written judgment of conviction, the oral pronouncement controls.”

State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999)
For Petrovic: Robert B. Rondini

Issue/Holding: Counsel’s cross of a detective elicited testimony that Petrovic refused to answer questions about her drug involvement during custodial examination. The court rejects her argument that counsel’s examination was deficient. Counsel “reasonably believed,” based on pretrial hearings that she had answered such questions (with denials). Counsel’s “unwittingly” eliciting testimony about her assertion of rights wasn’t unreasonable.

State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999)
For Wenger: Richard L. Wachowski

Holding: Duty-to-retreat instruction, Wis JI-Crim 810, properly submitted, though retreat would have been into defendant’s own home:

Here, the trial court used the pattern instruction to inform the jury of the applicable law on retreat.  The jury instruction put squarely before the jury the disputed issue of whether Wenger’s use of deadly force was reasonably necessary to “prevent or terminate the interference,”

State v. LaVere D. Wenger, 225 Wis.2d 495, 593 N.W.2d 467 (Ct. App. 1999)
For Wenger: Richard L. Wachowski

Holding: Violent acts of victim relevant to self-defense, as exception to general prohibition against character evidence, § 904.04(2), but exclusion of same harmless.

State v. Christopher M. Clutter, 230 Wis.2d 472, 602 N.W.2d 324 (Ct. App. 1999)
For Clutter: Martha K. Askins, SPD, Madison Appellate

Issue: Whether the nonsupport defense of inability to pay is viable by showing “lack of financial resources alone.”

Holding: “(L)ack of financial resources alone is insufficient to demonstrate inability to pay.”

Inability to pay is a defense to nonsupport. Clutter, on postconviction motion,