On Point: Published 2001

State v. William K. Nord, 2001 WI App 48, 241 Wis. 2d 387, 625 N.W.2d 302
For Nord: Timothy J. O’Brien

Issue: Whether the implied consent statute, § 343.305(4) violates due process by providing misleading information regarding the consequences for taking or refusing the test.

Holding: The warning that the motorist “will be subject to other penalties” beyond revocation doesn’t overstate the consequences for refusal, because refusal can result in substance assessment,

State v. Henry T. Skibinski, 2001 WI App 109, 244 Wis. 2d 229, 629 N.W.2d 12
For Skibinski: Karma S. Rodgers

Issue: Whether a trial court can, after findings of guilt on second and third offense OWI, apply the increased penalties of OWI-3rd to both offenses at sentencing.

Holding: For several reasons, the sentence for OWI-2nd was limited to the applicable penalty for that discrete offense, even though the defendant was simultaneously being sentenced for OWI-3rd: a prior conviction is an element of OWI,

State v. William P. Eckola, 2001 WI App 295
For Eckola: Gregory A. Parker

Issue: Whether the trial court erroneously exercised discretion by placing Eckola on probation for OWI-6th without requiring confinement for at least the presumptive minimum mandated by § 346.65(2)(e).

Holding:

¶15. When the circuit court, in its discretion, determines that a defendant will be placed on probation, Wis. Stat. § 973.09(1)(d) requires that the person be confined for at least the mandatory minimum period.

State v. Joel O. Peterson, 2001 WI App 220, PFR filed 9/21/01
For Peterson: William E. Schmaal

Issue: Whether the charge may be amended to include a repeater allegation, otherwise untimely under § 973.12(1), if accomplished as part of a plea bargain.

Holding:

¶24 … (A)llowing a defendant to agree to amend an information to add repeater allegations as part of an agreement to plead guilty or no contest is consistent with the goal of providing the defendant all the information about the potential punishment at the time he or she pleads guilty or no contest.

State v. Debra Noble, 2001 WI App 145, 629 N.W.2d 317, reversed, other grounds, State v. Debra Noble, 2002 WI 64
For Noble: Jeff P. Brinckman

Issue: Whether a state investigator’s destruction of interview violated the defendant’s due process right to exculpatory evidence.

Holding:

¶17. A defendant’s right of pretrial access to exculpatory evidence needed to prepare a defense is protected by the Due Process Clause of the Fourteenth Amendment. 

State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).

State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163

Issue: Whether the “presumptive mandatory release date” under § 302.11(1g) creates a liberty interest in parole protected by due process.

Holding: Prisoners sentenced for a “serious felony” between April 21, 1994, and December 31, 1999, are given a “presumptive” MR date. Discretionary parole does not create a due process-protected liberty interest, while mandatory release does.

State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.

Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test,

State v. Alfredo Ramirez, 2001 WI App 158, PFR filed 7/11/01
For Ramirez: Elizabeth A. Cavendish-Sosinski

Issue: Whether § 943.201(2) creates a continuing offense such that, as applied to Ramirez, it violated the ex post facto clause because the statute was promulgated after he commenced the activity that formed the basis for the charge.

Holding:

¶18. We hold that Ramirez obtained money in the form of wages,

City of Milwaukee v. Tanya M. Bean, et al., 2001 WI App 258, PFR filed 11/8/01
For Bean: Jerome F. Buting, Pamela S. Moorshead

Issue1: Whether prostitution activities in the area encompassed by the injunction were shown sufficiently to constitute a nuisance.

Holding:

¶13. Although it is true, as the appellants argue, that the infusion of prostitution in the affected areas can, on one level at least,