On Point blog, page 2 of 214
Publication Orders for January and February
In January and February, COA ordered several cases published which are relevant to our practice:
COA holds that difference between “L meth” and “D meth” does not create a defense to RCS prosecution
State v. Walter L. Johnson, 2024AP79-CR, 2/13/25, District IV (recommended for publication); case activity
In a case resolving a hot issue for OWI litigators, COA rejects challenges to an RCS prosecution based on the chemical difference between “L meth”–found in certain nasal decongestant sprays–and “D meth,” which is found in illicit street drugs.
D4 issues another speedy trial decision recommended for publication, holds that COVID-related delays should not weigh against the state
State v. Cordero D. Coleman, 2023AP2414-CR, 12/27/24, District IV (recommended for publication), case activity
COA holds that a 32-month delay in trying Coleman did not violate his constitutional right to a speedy trial where the COVID-19 pandemic was the primary cause of the delay. In doing so, COA identifies a new category of reasons for state-attributed delay, “which encompasses those delays that are caused by a reasonable government response to a legitimate public emergency” and holds such delays should not be weighed against the state. (¶56).
COA finds consent to blood draw valid in a detailed discussion of Wisconsin’s implied consent statutes recommended for publication.
State v. Christopher A. Gore, 2023AP169-CR, 1/7/25, District III (recommended for publication), case activity
The Court of Appeals held, in a decision recommended for publication, that Christopher Gore’s consent to a blood draw was voluntary because he was not misinformed about the consequences of refusing to consent, and the officer’s statement that he would seek to obtain a warrant if Gore did not consent did not invalidate his consent.
Catching up on COA’s publication orders
In October, November and December, COA ordered several cases published which are relevant to our practice:
COA: Circuit court may use defendant’s federal disability payments to assess ability to pay restitution.
State v. Eric J. Joling, 2023AP1023-CR, 12/11/24, District II (recommended for publication); case activity
Federal law prohibits subjecting social security disability insurance payments (SSDI) to “execution, levy, attachment, garnishment, or other legal process.” 42 U.S.C. § 407(a). In a decision recommended for publication, the Court of Appeals held that a circuit court may nevertheless use a defendant’s SSDI payments to calculate the ability to pay restitution.
COA reverses order excluding other acts evidence, holds that greater latitude rule weakens holding of Alsteen
State v. Morris V. Seaton, 2021AP1399-CR, 11/6/24, District II (recommended for publication); case activity
In a case confirming the changes wrought to other acts case law as a result of the codification of the greater latitude rule, COA reverses the circuit court’s order excluding evidence of a prior sexual assault
COA reverses suppression in state’s appeal, holds no reasonable expectation of privacy in video uploaded to Snapchat
State v. Michael Joseph Gasper, 2023AP2319, 10/30/24, District 2 (recommended for publication); case activity (including briefs)
The circuit court held that an officer’s warrantless inspection of a cyber tip digital video file provided to the officer and identified as child pornography by a private internet service provider constituted an unreasonable search in violation of the Fourth Amendment. The COA concludes that Gasper did not have a reasonable expectation of privacy in the video, which he uploaded to Snapchat in violation of the terms of service and reverses.
COA reverses order dismissing charge for failing to register as sex offender; defendant required to register when cir. ct. ordered registration at sentencing after revocation of probation, even though registration not required when defendant placed on probation.
State v. Kayden Young, 2021AP1596-CR, 10/29/24, District III (recommended for publication); case activity
In a case recommended for publication, the Court of Appeals reversed the circuit court’s order dismissing the charge against Kayden Young for failing to comply with the sex offender registration requirements. Where the circuit court did not require Young to register as a sex offender when it placed him on probation, but required registration when it sentenced him after revocation of probation, “that latter order controls the defendant’s requirement to comply with sex offender registration.” (¶ 22).
Defense Wins: Involuntary medication order for incompetent criminal defendant may not be based solely on dangerousness.
State v. N.K.B., 2023AP722-CR, 10/1/24, District I (recommended for publication); petition for review granted, 2/12/25 case activity
N.K.B. (referred to as Naomi) was found incompetent to proceed on her criminal charges. The circuit court authorized involuntarily administering medication to Naomi because she was dangerous. Naomi argued on appeal that the circuit court did not have authority to authorize involuntarily medicating her based only on dangerousness. In a recommended-for-publication decision, the COA vacated the circuit court’s order authorizing involuntary medication: “Defendants committed under § 971.14 cannot be involuntarily medicated based on dangerousness absent the commencement of proceedings under ch. 51 or some other statute that authorizes involuntary medication based on the defendant’s dangerousness.” (¶ 20).