On Point blog, page 28 of 214
Home detention counts as “confined in a correctional institution” under § 940.225(2)(h)
State v. Jeff C. Hilgers, 2017 WI App 12; case activity (including briefs)
Hilgers, a correctional officer at a county jail, had sex with an inmate while she was on home detention. He was properly convicted of second degree sexual assault under § 940.225(2)(h), which prohibits a correctional officer from having sexual intercourse or sexual contact with “an individual who is confined in a correctional institution.”
2013 amendments to 980 discharge statute apply retroactively
State v. Carter, 2017 WI App 9, petition for review granted 5/15/17; case activity (including briefs)
This case is a companion to State v. Hager, in which the court held that the amended discharge statute does not require a committed person to prove he is not dangerous in order to get a discharge trial.
Defense win: amendment to 980 discharge standard doesn’t authorize “weighing”
State v. David Hager, Jr., 2017 WI App 8, petition for review granted 5/15/17; reversed 4/19/18; case activity (including briefs)
This is the first (likely) published case to construe the 2013 amendments to the ch. 980 discharge petition standard. The court of appeals holds that while the legislature required a committed person seeking a discharge trial to meet a higher burden of production, it did not permit courts to deny a trial based on an assessment that the evidence as a whole favors the state.
Counsel’s failure to object to hearsay and opinion evidence was not ineffective
State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)
B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.
Right to be present at trial waived
State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)
Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.
WEAJA doesn’t cover forfeiture action brought by the State instead of a state agency
State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)
The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”
Expungement decision requires proper exercise of discretion, including statement of rationale
State v. Rachel M. Helmbrecht, 2017 WI App 5; case activity (including briefs)
A circuit court’s decision on whether to order expungement under § 973.015 involves the exercise of discretion, and therefore the general rules governing the proper exercise of discretion apply to the expungement decision.
Defense win! County’s social host ordinances violates sec. 125.07(1)
County of Fond du Lac v. Stuart D. Muche, 2016 WI App 84; case activity (including briefs)
Muche threw a high school graduation party for his son and (gasp!) some of the underage guests brought beer to it. Sheriff’s deputies showed up and cited Muche for violation of Fond du Lac County’s social host ordinance, which resulted in a forfeiture of $1,000. This decision dismisses the forfeiture and, according to the Journal Sentinel, could require changes to “dozens of social host ordinances aimed at combatting underage drinking.” In short, this decision is SCOW bait.
Court of appeals allows restitution for security system installed prior to burglary
State v. Thomas J. Queever, 2016 WI App 87; case activity (including briefs)
Thomas Queever tried to break into a house. We know this because the home’s security system captured video of him doing so. The circuit court and the court of appeals ordered him to pay the cost of said security system, concluding that the expense of installing it was the “result of a crime considered at sentencing,” even though it was installed prior to the burglary of which Queever was convicted. Does the court of appeals’ authority extend to reversing the arrow of time?
Court of appeals interprets scope of Wisconsin’s new “Good Samaritan” immunity statute narrowly
State v. Marie Williams, 2016 WI App 82; case activity (including briefs)
Like other states, Wisconsin has an opioid addiction epidemic. To encourage people to summon emergency aid for someone who has overdosed, the legislature passed §961.443 which provides that that an “aider” is immune from prosecution for the possession of drug paraphernalia under §961.573 or a controlled substance or a controlled substance analog under §961.41(3g) when trying to help a victim of overdose.