On Point: B. Published opinions

State ex rel. Christopher W. Baade v. Brian Hayes, 2015 WI App 71; case activity (including briefs)

Section 973.155(4) says that sentence credit granted to inmates serving sentences of one year or less in a county jail or a house of correction “shall include earned good time….” That language doesn’t apply to inmates who are placed on probation and given conditional jail time with good time because probation condition time isn’t a sentence.

Wisconsin Carry, Inc. & Thomas Waltz v. City of Madison, 2015 WI App 74, petition for review granted 1/11/16, reversed 2017 WI 19; case activity (including briefs)

The state statute preempting certain local firearm regulations, § 66.0409(2), doesn’t apply to the rule prohibiting weapons on city buses adopted by the Madison Transit and Parking Commission. The plain language of the statute shows the legislature chose limited language that applies only to “ordinances” or “resolutions” enacted by a political subdivision, and the Commission’s rule isn’t an “ordinance” or “resolution” under well-established law, Cross v. Soderbeck, 94 Wis. 2d 331, 342, 288 N.W.2d 779 (1980).

State v. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

State v. Tommy Lee Branch, 2015 WI App 65; case activity (including briefs)

The circuit court had no authority to order cash seized from Branch on his arrest to be used to pay court obligations because there was no basis for concluding the money was not subject to return under § 968.20. As the court of appeals puts it, the cash Branch had at the time of his arrest was no different from any other personal property he had when arrested. “Had [Branch] been wearing a $200 Stetson hat, a $300 Gucci belt, or a pair of $500 Allen Edmonds shoes, the State would not be allowed to seize those items of personal property and sell them on eBay to pay Branch’s debts.” (¶10).

Steven Michael Leonard v. State of Wisconsin, 2015 WI App 57; case activity (including briefs) NOTE: This case’s analysis of whether DC is a misdemeanor crime of domestic violence is effectively overruled by Doubek v. Kaul, 2022 WI 31.

The court of appeals concludes that there’s no basis in the record for determining whether Leonard’s disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence” under the federal firearm prohibition, 18 U.S.C. § 922(g)(9), and therefore he is not barred from possessing a firearm under that statute. The court also holds that Leonard’s disorderly conduct “involv[ed] the use of” one of Leonard’s guns and therefore § 968.20(1m)(b) bars the return of that gun.

State v. Gregory Mark Radaj, 2015 WI App 50; case activity (including briefs)

A defendant who committed a felony before the effective date of the law mandating a $250 DNA surcharge for each felony conviction, but who is sentenced after that effective date, cannot be made to pay the surcharge on each felony conviction because that violates the prohibition against ex post facto laws. Instead, the defendant may only be subject to a single discretionary surcharge of $250.

State v. Garett T. Elward, 2015 WI App 51; case activity (including briefs)

Defendants who committed a misdemeanor offense before April 1, 2015 January 1, 2014, cannot be made to pay the mandatory $200 DNA surcharge that is supposed to be imposed for each misdemeanor conviction beginning January 1, 2014, because imposition of the surcharge on that class of defendants violates the ex post facto clauses of the state and federal constitutions. [See UPDATE below regarding the date change.]

State v. David E. Hull, 2015 WI App 46; case activity (including briefs)

The recently enacted statute allowing the admission of hearsay evidence at preliminary hearings is not an unconstitutional ex post facto law because it affects only the evidence that may be admitted at the preliminary hearing and does not alter the quantum or nature of evidence necessary to convict the defendant. In addition, the court commissioner properly refused to allow Hull to call the alleged victim to testify at the preliminary hearing because the anticipated testimony was not relevant to the probable cause inquiry.

State v. Mastella L. Jackson, 2015 WI App 49, petition for review granted, 10/8/15, affirmed, 2016 WI 56; click here for briefs

This decision is SCOW bait. Police in Outagamie County engaged in what the court of appeals called “reprehensible” actions while interrogating the defendant. “Outraged” the circuit court suppressed the defendant’s statements to police and the physical evidence obtained during the search of her home. The court of appeals reversed the suppression of physical evidence on the theory that the untainted evidence described in the officers’ search warrant established probable cause and that the physical evidence was admissible via the inevitable discovery doctrine.

State v. Andrew L. Jackson, 2015 WI App 45; case activity (including briefs)

The standard established under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), for determining a defendant’s competency to represent himself does not violate Indiana v. Edwards, 554 U.S. 164 (2008), the court of appeals holds. The court also affirms the circuit court’s conclusions that Jackson didn’t validly waive his right to counsel and wasn’t competent to represent himself.