On Point blog, page 5 of 214
D3 affirms denial of plea withdrawal claim under Cross’ “higher, but not substantially higher” rule
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.
Big Defense Win: COA rejects state’s attempts to apply canine “instinct exception”
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.
November and December 2023 Publication Orders
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)
COA rejects constitutional challenge to legislature’s inclusion of non-impairing metabolite as restricted controlled substance
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.
October 2023 Publication Order
On October 25, 2023, the court of appeals ordered publication of two criminal law related decisions:
State v. Troy Allen Lanning, 2023 WI App 52 (holding that a pending criminal prosecution means civil forfeiture proceeding need not be held within 60 days)
State v. Aaron L. Jacobs, 2023 WI App 53 (rejecting state’s expansive bail jumping prosecution and establishing a two-part test where a defendant was previously released from custody on bond,
COA holds that “execution” of a search warrant does not include later forensic analysis of seized items, meaning that such analysis is not subject to five-day statutory deadline governing the “execution” of search warrants
State v. John J. Drachenberg, 2022AP2060-CR, 10/12/23, District IV (recommended for publication); case activity
In a decision recommended for publication, COA clarifies that the “execution” of a search warrant does not include forensic analysis that can occur weeks or months later. Accordingly, even though those activities may occur outside the statutory window, this does not create a statutory (as opposed to constitutional) argument for suppression.
September 2023 Publication Order
On September 27, 2023, the court of appeals ordered publication of one criminal law related decision:
State v. John R. Brott, 2023 WI App 45 (mandatory minimum sentence for possession of child pornography is mandatory)
Defense Win! COA rejects state’s overly expansive bail jumping prosecution
State v. Aaron L. Jacobs, 2022AP658-659, 2022AP661-663, 9/19/23, District 3 (recommended for publication); case activity (including briefs)
The key takeaway from this soon to be published court of appeals decision may seem obvious and inarguable, but as we’ll see below, the state pursued and the circuit court blessed what would have been a massive expansion of the most commonly charged crime in the state of Wisconsin: bail jumping.
August 2023 publication order
On August 30, 2023, the court of appeals ordered publication of one criminal law related decision:
State v. Gregory L. Cundy, 2023 WI App 41 (Applying Payton rule to invalidate “Terry stop” inside home)
July 2023 publication list
On July 26, 2023, the court of appeals ordered publication of two criminal law related decision:
State v. Cedric Tung, 2023 WI App 33 (rejecting McCoy v. Louisiana and United States v. Cronic based IAC claims)
State v. Conrad M. Mader, 2023 WI App 35 (testimony that 99% of sexual assault reports are true improperly vouched for complainant’s credibility at trial)