On Point: B. Published opinions

S.R. v. Circuit Court for Winnebago County, 2015 WI App 98; case activity

Because S.R. and C.L.’s “petition for determination of parentage” effectively asked the circuit court for a declaratory judgment about the meaning of Wisconsin’s parentage statutes in light of the cases holding that same-sex couples have a constitutional right to marry, the petition should have been served on the Attorney General. Because that didn’t happen, the circuit court lacked the competency to decide the petition.

State v. Colton M., 2015 WI App 94; case activity

Colton challenges his delinquency adjudication for repeated acts of sexual contact with a child under the age of 16 under § 948.025(1)(e), arguing that applying the statute to him violates due process because it provides insufficient standards for distinguishing him from D., the victim, as both were 15 years old and both engaged in sexual activity. Colton also argues that prosecuting him rather than D. violates equal protection. The court concludes that, under the facts of this case, the statute is sufficiently definite to satisfy due process and there was a rational basis for prosecuting Colton instead of D.

State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)

While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.

State v. Tabitha A. Scruggs, 2015 WI App 88, petition for review granted, 3/7/16, affirmed, 2017 WI 15; case activity (including briefs)

Addressing a question left open by State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, the court of appeals holds that the constitutional prohibition against ex post facto laws does not bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect.

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

State v. David Jerome Gant, 2015 WI App 83; case activity (including briefs)

Ten months after seizing Gant’s computer as part of their investigation of the death of Gant’s wife, police searched the computer pursuant to a warrant and found child pornography. Assuming it was unlawful for the police to keep Gant’s computer for that long, the child pornography found on the computer should not be suppressed under the independent source and attenuation doctrines.

State ex rel. Rockie L. Douglas v. Brian Hayes, 2015 WI App 87; case activity (including briefs)

Douglas’s probation was improperly revoked based on his refusal to answer his probation agent’s inquiry about Douglas’s suspected involvement in various criminal activities while on probation because he was not sufficiently informed, prior to his refusal, that he had both use and derivative use immunity related to any information he would have provided the agent.

State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)

In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37). 

State v. Christopher J. Oatman, 2015 WI App 76; case activity (including briefs)

The statute prohibiting a registered sex offender from intentionally photographing a minor without parental consent, § 948.14, violates the First Amendment because it “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” (¶18, quoting State v. Stevenson, 2000 WI 71, ¶22, 236 Wis. 2d 86, 613 N.W.2d 90).

State v. Ryan H. Tentoni, 2015 WI App 77; case activity (including briefs)

Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.