On Point: B. Published opinions

On March 27, 2019, the court of appeals ordered the publication of the following criminal law related cases:

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10 (judge’s acceptance of litigant’s Facebook “friend” request created appearance of bias)

State v. Kelly James Kloss, 2019 WI App 13 (Defense win on soliciting reckless injury versus soliciting recklessly endangering safety)

State v.

Winnebago County v. C.S., 2019 WI App 16, petition for review granted, 8/19/19; case activity

C.S., a mentally ill prisoner committed pursuant to §51.20(1)(ar), challenged the constitutionality of §51.61(1)(g) on its face and as applied because it allowed the government to medicate him against his will without finding him dangerous first. In a published decision, the court of appeals upholds the statute.

Brown County Human Services v. B.P and T.F., 2019 WI App 18; case activity

T.F. argued that when the Department seeks to terminate parental rights on the grounds of abandonment in a case where the child is out of the home and a CHIPS order is in place, it must proceed under §48.415(1)(a)2., rather than (a)3. T.F. also argued that allowing the Department to proceed under (a)3 would result in an Equal Protection violation. The court of appeals rejected these arguments but held that the circuit court erred in granting summary judgment with respect to T.F. because material facts were in dispute over whether she had good cause for abandoning her daughter, Allie.

State v. Kelly James Kloss, 2019 WI App 13, petition and cross petition for review granted, 6/11/19, petitions dismissed as improvidently granted, 3/6/20; case activity (including briefs)

Bad news first: Addressing an issue of first impression, the court of appeals held that Wisconsin now recognizes the crime of solicitation of 1st degree reckless injury. Good news: Solicitation of 1st degree recklessly endangering safety is a lesser included offense of solicitation of 1st degree reckless injury, which means that convicting a defendant of both violates multiplicity principles and Double Jeopardy. Defense wins!

Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)

After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.

On January 31, 2019, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Autumn Marie Love Lopez & Amy J. Rodriquez, 2019 WI App 2 (retail theft charges can be aggregated under § 971.36)

State v. Alexander M. Schultz, 2019 WI App 3 (addressing double jeopardy challenges to successive prosecution when the charging language of the prior prosecution is ambiguous)

State v.

State v. Alexander M. Schultz, 2019 WI App 3, petition for review granted 4/9/19; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that to ascertain the scope of the double jeopardy bar against a successive prosecution when the charging language of the prior case is ambiguous, a court must consider, in light of the entire record of the prior case, how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. Applying the test here, the court rules Schultz’s prosecution wasn’t barred.

State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court, 2019 WI 101; Lopez case activity; Rodriquez case activity).

Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.

On November 28, 2018, the court of appeals ordered the publication of the following criminal law related decision:

State v. Matthew C. Hinkle, 2018 WI App 67 (juvenile court’s waiver into adult court binds all future courts)