On Point blog, page 43 of 214
Court’s deviation from the exact language of immigration warning in § 971.08(1)(c) doesn’t entitle defendant to plea withdrawal
State v. Ali Mursal, 2013 WI App 125; case activity
Before accepting a defendant’s guilty or no contest plea the court is required to advise the defendant there may be immigration consequences. Wis. Stat. § 971.08(1)(c). While that statute prescribes a text for the required warning—complete with quotation marks—the court of appeals holds in this case that a judge’s failure to repeat that language verbatim is not by itself grounds for plea withdrawal.
Securities fraud — factual basis for plea; definition of “security”
State v. James C. Hudson, 2013 WI App 120; case activity
Hudson’s untrue statements to persons to get them to invest in his country music career provided a factual basis for his plea to two violations of ch. 551’s prohibition against making untrue statements of material fact in connection with the sale of a “security” because his conduct involved “securities.” A security includes an “investment contract,” which under § 551.102(28)(d)1.
Court of Appeals reverses 1st degree intentional homicide conviction based on State’s violation of § 904.10
State v. Raphfael Lyfold Myrick, 2013 WI App 123; case activity
Wow! District 1 is really on a roll. Twice in less than one week they’ve reversed a conviction for first-degree murder. Last Friday it was State v. Wilson, 2011AP1803, a summary reversal and hence not summarized by On Point. Wednesday, it was State v. Myrick, the subject of today’s post.
Right to a public trial. Lay testimony about events depicted on surveillance video.
State v. Amos L. Small, 2013 WI App 117; case activity
Right to a public trial
The circuit court appropriately excluded a person from the courtroom under State v. Ndina, 2009 WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, after the prosecutor asserted the had threatened a state’s witness after her testimony. (¶9). While Small’s lawyer objected to the exclusion of the person on the grounds it violated Small’s right to a public trial and was based on a hearsay statement,
Dog sniff and search of car were unlawful because officer unreasonably extended the duration of the stop
State v. Kenneth C. House, 2013 WI App 111; case activity
House was stopped for operating with a suspended registration. After running House’s license and learning he was on probation for a drug offense, the officer returned House’s license and issued him a warning for the suspended registration. The officer then retrieved his police dog who, after sniffing around the vehicle, alerted on the driver and passenger doors.
Plea withdrawal granted because bargain was “illusory”
State v. Myron C. Dillard, 2013 WI App 108, petition for review granted, 2/19/14, affirmed, 2014 WI 123; case activity
Dillard accepted a plea bargain under which a persistent repeater allegation was dismissed, thus apparently reducing his maximum penalty exposure by avoiding a mandatory life sentence without prospect of release. But Dillard was not really subject to the persistent repeater law,
Court of Appeals: Pattern jury instruction on self-defense for reckless or negligent crimes does not provide a proper statement of the state’s burden of proof
State v. Langston C. Austin, 2013 WI App 96; case activity
In this important case the court of appeals holds that the pattern jury instruction for self-defense in cases involving reckless or negligent crimes does not properly apprise the jury that the state has the burden to prove the defendant did not act in self-defense.
Austin stabbed two people during a confrontation on a street and was charged with two counts of first-degree recklessly endangering safety with a dangerous weapon.
TPR: Waiver of jury and stipulation to elements doesn’t survive subsequent appeal, reversal, and remand
Walworth County DH&HS v. Roberta J.W., 2013 WI App 102; consolidated case activity: 2012AP2387; 2012AP2388
The County petitioned to terminate Roberta’s parental rights in 2007 on the grounds her children were in continuing need of protection and services. After a jury trial and dispositional hearing her rights were terminated, but on appeal the termination order was reversed and remanded for a new fact-finding hearing. (¶4).
Exposing genitals to a child, § 948.10, is limited to situations involving face-to-face contact and therefore doesn’t cover “sexting”
State v. Zachary P. Stuckey, 2013 WI App 98; case activty
The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element,
Guest Post: Marcus Berghahn on the Court of Appeals decision upholding the use of hearsay at preliminary hearings
State v. Martin P. O’Brien, State v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97.
As briefly noted in a previous post, the Court of Appeals has upheld Wis. Stat. § 970.038, which makes hearsay admissible at preliminary hearings and allows bindover based solely on hearsay. On Point is pleased to present this guest post about the decision by Attorney Marcus Berghahn,