On Point blog, page 9 of 17
OWI – Enhancer – Collateral Attack on OWI-1st
State v. Joseph J. Hammill, 2006 WI App 128. For Hammill: Patrick J. Stangl
Issue/Holding:
¶15 Hammill argues the circuit court erred by counting a Village of Cameron conviction. Hammill was arrested in that case for OWI-first on January 1, 1991. On January 28, Hammill was arrested for OWI in Eau Claire, which was also charged as a first offense. Hammill pled to both OWI-first cases on the same day,
Enhancer – Collateral Attack – Transcript Missing from Enhancer Case, & Defendant’s Prima Facie Burden
State v. Joseph J. Hammill, 2006 WI App 128
For Hammill: Patrick J. Stangl
Issue/Holding:
¶6 A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding only on the ground that the defendant was denied the constitutional right to counsel. …
¶7 Hammill argues that he made a prima facie showing that he did not knowingly and voluntarily waive his right to counsel.
Costs — Attorney Fees – Constitutional Limits, Recoupment: Indigency Determination
State v. Kevin J. Helsper, 2006 WI App 243
For Helsper: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶7 Constitutional limits on a state’s recoupment of attorney fees are grounded in both due process and equal protection principles. Bearden v. Georgia, 461 U.S. 660, 665 (1983). Recoupment statutes must be tailored to “impose an obligation only upon those with a foreseeable ability to meet it,
Earned Release Program (“ERP”) – Exercise of Discretion to Determine Eligibility
State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson
Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”
Holding:
¶9 Owens complains that even though the trial court set forth an explanation for its sentence,
Earned Release Program – Statutory Ineligibility Due to Type of Crime – Equal Protection (and Substantive Due Process)
State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe
Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.
Holding:
¶18 Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.
Guilty Plea Waiver Rule – Plea Bargain Agreement to Relinquish Attack on Guilty Plea
State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.
Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”
Holding:
¶15 The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;
Forfeiture of Weapon, § 968.20(1m)(b) – Actual Physical Possession Not Necessary
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius
Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).
Holding:
¶9 Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before,
Forfeiture of Weapon, § 968.20(1m)(b) – Read-In Crime Suffices
State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius
Issue: Whether the weapon must have been used in the crime of conviction in order to be subject to forfeiture.
Holding:
¶11 Kueny misreads the plain language and misses a nuance of the statute. Wisconsin Stat. § 968.20(1m)(b) forbids returning weapons to one who “committed” a crime involving their use;
Reasonable Suspicion — Stop – Duration – Routine Traffic Offense – Prolonged to Seek Consent to Search Automobile
State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki
Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.
Holding:
¶14 … (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated:
I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave.
Terry Stop — Basis – Informant: “Citizen” vs. “Confidential,” Generally
State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell
Issue/Holding:
¶12 … Though there is some confusion in the case law, we believe that the distinction is that a confidential informant is a person, often with a criminal past him- or herself, who assists the police in identifying and catching criminals, while a citizen informant is someone who happens upon a crime or suspicious activity and reports it to police.