On Point blog, page 23 of 214
September 2018 publication list
On September 26, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Norris W. Culver, Sr., 2018 WI App 55 (rejecting constitutional challenges to §§ 942.09 and 941.29)
State v. Christopher A. Mason, 2018 WI App 57 (identify theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents)
Court of Appeals rejects constitutional challenges to ban on posting or publishing private pictures, felon in possession statute
State v. Norris W. Culver, 2018 WI App 55; case activity (including briefs)
Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.
Defendant consented to search and had no expectation of privacy in files put on P2P file sharing network
State v. Ronald Lee Baric, 2018 WI App 63; case activity (including briefs)
Police failed to read Baric his Miranda rights, but the court of appeals still found that he consented to a search of his computer. It also resolved a 4th Amendment issue of first impression for Wisconsin: a person has no reasonable expectation of privacy in files he offers for download on a P2P file sharing network.
Innocence project notches win on writ of coram nobis
State v. Sammy Joseph Hadaway, 2018 WI App 59; case activity (including briefs)
Hadaway pleaded guilty to an armed robbery more than 20 years ago. Based, in part, on Hadaway’s testimony, his purported accomplice, Ott, was tried and convicted of first-degree intentional homicide–the victim of the crime was sexually assaulted and murdered.
Identity theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents
State v. Christopher A. Mason, 2018 WI App 57; case activity (including briefs)
Applying its newly minted decision in State v. Stewart, 2018 WI App 41, the court of appeals holds that the “representing” element of identity theft under § 943.201 can be proven with the same evidence that proves the defendant “used” the identifying information or documents.
July 2018 publication list
On July 25, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Theoris Raphel Stewart, 2018 WI App 41 (identity theft statute, § 943.203, applied to defendant’s forgery of documents he submitted at sentencing hearing)
Drazen Markovic v. Jon E. Litscher, 2018 WI App 44 (DOC may collect restitution from an inmate even after expiration of sentence to which restitution order was connected)
Plea hearing courts don’t have to inform defendants about the mandatory DNA surcharge
State v. Arthur Allen Freiboth, 2018 WI App 46; case activity (including briefs)
In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:
“Let me represent myself” is not a clear and unequivocal request to represent yourself
State v. Terrance Lavone Egerson, 2018 WI App 49; case activity (including briefs)
Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.
“Email volunteer system” for assigning substitute judge isn’t unlawful
Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)
Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.
June 2018 publication list
On June 27, 2018, the court of appeals ordered the publication of the following criminal law related decision:
State v. Dylan D. Radder, 2018 WI App 36 (“boilerplate” motion to suppress didn’t contain sufficient allegations to merit an evidentiary hearing)