On Point: B. Published opinions

On April 26, 2023, the court of appeals ordered publication of the following criminal law related decisions:

Outagamie County v. L.X.D.-O., 2023 WI App 17 (counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings).

Brown County Department of Human Services v. S.K., 2023 WI App 27; case activity

A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of  child neglect resulting in death under but “as a party to the crime.” In a decision recommended for publication, the court of appeals reversed, but it rejected Stephanie’s argument that an “as a party to the crime” conviction can never qualify as a “serious felony.”

State v. Rasheem D. Davis, 2023 WI App 25; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that the circuit court’s order dismissing charges against Davis that was rescinded minutes later didn’t deprive the court of subject matter jurisdiction.

On March 29, 2023, the court of appeals ordered the publication of the following criminal law related decisions:

Outagamie County v. L.X.D.-O., 2023 WI App 17; case activity

Unfortunately, the court of appeals just turned Chapter 51 upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns the sufficiency of the evidence to support an involuntary medication order entered following an initial commitment. The court of appeals held that the doctor’s testimony was insufficient to support the order, but the doctor’s report, which was not moved into evidence, filled the gaps. It thus affirmed the med order.

State v. Debra L. Rippentrop & Steven E. Rippentrop, 2023 WI App 15; case activity (including briefs) 2022AP92-CR and 2022AP93-CR

The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.

On February 22, 2023, the court of appeals ordered publication of the following criminal law related decision:

State v. Ayodeji J. Aderemi, 2023 WI App 8 (delay in upload of information on efiling system didn’t deprive circuit court of jurisdiction in criminal case)

State v. Lynne M. Shirikian, 2023 WI App 13; case activity (including briefs)

Shirikian pleaded to OWI as a fifth offense. Back in 2019, the legislature amended the statutes to create a both a presumptive and a mandatory minimum sentence for OWI 5th and OWI 6th. See 2019 Wis. Act 106; Wis. Stat. § 346.65(2)(am)5. The presumptive minimum requires at least 18 months of initial confinement, but the statute lets a court go lower if it finds doing so in the best interest of the community and not harmful to the public. The court of appeals now holds that even if a court decides to give less than 18 months IC, it’s still obligated to impose a bifurcated sentence. Since bifurcated sentences necessarily involve at least a year of IC, see Wis. Stat. § 973.01(2)(b), that year is the true mandatory minimum. Further, the court holds, a sentencing judge can’t avoid this minimum by imposing and staying a prison sentence and ordering of probation. Because the judge here did order probation, the court of appeals remands with directions that the lower court impose a legal sentence.

State v. Ayodeji J. Aderemi, 2023 WI App 8; case activity (including briefs)

This appeal concerns a problem many will encounter. An alleged attempt to e-file a document apparently failed. Here, the document was the State’s Information. Aderemi argued that the fumble caused the State to miss its filing deadline, so under §971.01(2) the circuit court had to dismiss the case without prejudice. In a split decision, recommended for publication, the majority (White and Brash) ruled for the State. The dissenter (Dugan) faults the majority for ignoring important parts of Wisconsin’s e-filing statute. He would reverse and remand for an evidentiary hearing.

On January 25, 2023, the court of appeals ordered the publication of the following criminal-law related decision:

State v. Steven W. Bowers, 2023 WI App 4 (affirming suppression of evidence seized during warrantless search of defendant’s Dropbox account)