On Point: B. Published opinions

State v. Maria A. Larson, 2023AP1534-CRAC, 4/24/24, District II (recommended for publication); case activity

Larson’s frustrated attempts to request judicial substitution are finally vindicated in this published decision emphasizing a plain text reading of the statute’s straightforward legal requirements.

State v. Carl Lee McAdory, 2023AP645-CR, 4/12/24, District IV (recommended for publication); petition for review granted 10/7/24 case activity

After McAdory persuaded the court of appeals to reverse his OWI conviction and grant him a new trial, the state pulled the “old switcheroo” on McAdory by getting the circuit court to swap his previously dismissed restricted controlled substance conviction with the OWI conviction overturned by the court of appeals. Instead of a new OWI trial, McAdory was stuck with a new sentence on his previously dismissed RCS conviction. After rejecting McAdory’s challenges to the circuit court’s post-remittitur actions and his double jeopardy claims, the court of appeals affirms.

State v. Ashley Jean Campbell, 2020AP1813, 3/5/24, District 3 (recommended for publication); case activity

As a matter of first impression in Wisconsin, the court of appeals holds that regardless of whether the “instinct exception” exists, “the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle.” Op., ¶5.  More specifically, the court concludes that the canine “did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door.” As a result, the court reverses Campbell’s judgment of conviction and remands with directions to grant her motion to suppress.

So far this year, the Wisconsin Court of Appeals has published one criminal law related decision. Here are the publication orders for January and February 2024. The lone published decision is in State v. Dustin J. VanderGalien, 2024 WI App 4 (rejecting a constitutional challenge to the criminalization of driving with a detectable non-impairing cocaine metabolite).

State v. M.L.J.N.L., 2021AP1437, 2/28/24, District IV (recommended for publication); case activity

In one of our first published decisions to address the impact of Marsy’s Law, COA accepts the agreed-upon position of both parties that Marsy’s Law does not alter the framework for assessing requests for juvenile restitution under § 938.34(5)(a). 

Artillis Mitchell v. Chris S. Buesgen & Kevin A. Carr, 2022AP1076, 2/22/24, District 4 (recommended for publication); case activity

This case concerns Mitchell’s appeal from the circuit court’s order dismissing his petition for a writ of certiorari. We recognize the case is a bit outside of our normal coverage, but in addition to the fact that D4 has recommended this decision for publication, the case presents an interesting, if somewhat technical, application of law to a factual scenario that is likely of some interest to our readers. The bottom line is that the denial of Mitchell’s petition is affirmed, despite the fact that he indisputably filed proof that he fully exhausted all available administrative remedies, because he failed to file “all documents related to the administrative process.” Op., ¶33-34.

State v. Kasey Ann Gomolla, 2022AP199-CR, 2/6/24, District 3 (recommended for publication); case activity

Even if the court of appeals had not recommended this decision for publication, Gomolla’s case seems destined for further review. While the facts here are somewhat distinguishable from State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786 N.W.2d 64, Cross’ counter-intuitive holding, even with arguably “better” facts, seems to have hamstringed the court of appeals from acknowledging that a plea cannot be said to be “knowing, intelligent, and voluntary” if the defendant does not know the correct maximum penalty. If we had to guess, SCOW will soon be considering whether to reconsider, limit, or overrule Cross. 

State v. Ashley Jean Campbell, 2020AP1813, 1/23/24, District 3 (recommended for publication); case activity

As a matter of first impression in Wisconsin, the court of appeals holds that regardless of whether the “instinct exception” exists, “the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle.” Op., ¶5.  More specifically, the court concludes that the canine “did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door.” As a result, the court reverses Campbell’s judgment of conviction and remands with directions to grant her motion to suppress.

The court of appeals issued the final two publication orders of the year on November 29, 2023, and December 21, 2023. Two criminal law related decision are included in the orders:

State v. John J. Drachenberg, 2023 WI App 61 (holding that the “execution” of a search warrant does not include forensic analysis that can occur weeks or months later)

State v.

State v. Dustin J. VanderGalien, 2023AP890-CR, 12/29/23, District 4 (recommended for publication); case activity

VanderGalien pled no contest to three counts stemming from a fatal motor vehicle crash after a non-impairing cocaine metabolite (benzoylecgonine or “BE”) was detected in his blood hours after the incident. The court of appeals rejects his facial challenge to the statute, Wis. Stat. § 340.01(50m)(c), which includes BE as a restricted controlled substance under the motor vehicle code. The court of appeals explains that “the inclusion of cocaine or any of its metabolites in the definition of a restricted controlled substance for purposes of prosecution under the Wisconsin motor vehicle code bears a rational relationship to the purpose or objective of the statutory scheme,” which is to combat drugged driving. Op., ¶30.