On Point blog, page 3 of 6
Ch. 980 petition is timely as long as it’s filed before the person’s release or discharge from sentence
State v. Hershel R. Stanley, 2014 WI App 89; case activity
Even if DOC was required to release Stanley from prison on his presumptive mandatory release date instead of holding him to his maximum discharge date, the ch. 980 petition filed against him before his discharge date was timely because § 980.02(1m) permits filing a ch. 980 petition before a person is released or discharged from his sentence.
Rule prohibiting collateral attacks on prior judicial orders applies to administrative orders
State v. Vernon D. Hershberger, 2014 WI App 86; case activity
As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.
Failure to preserve evidence rule from Youngblood applies even though defendant wasn’t notified of right to test evidence before it was destoyed
State v. Jessica M. Weissinger, 2014 WI App 73, petition for review granted 10/15/14, affirmed, 2015 WI 42; case activity
Saying it is bound by the rule from Youngblood v. Arizona, 488 U.S. 51 (1988), the court of appeals holds that the state’s destruction of a blood sample before the defendant was notified of her option to test the sample did not violate her due process rights because she has not shown the sample was “apparently exculpatory.” A vigorous dissent says the majority reads Youngblood too broadly, and concludes that because the evidence was inculpatory and necessary to the prosecution, destroying the evidence violated Weissinger’s due process rights even if the state didn’t act in bad faith.
Counsel was not ineffective for failing to object to comment on defendant’s silence or for telling jury defendant would testify
State v. Russell S. Krancki, 2014 WI App 80; case activity
In the first Wisconsin case to address how Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), affects the admission of evidence of a defendant’s silence, the court of appeals reads Salinas to apply to a narrow factual scenario not present in this case. The court goes on to assume that trial counsel should have objected to testimony about Krancki’s silence, but finds his failure to object wasn’t prejudicial. The court also concludes trial counsel wasn’t ineffective for saying in his opening statement that Krancki would testify or for failing to exclude references to the .02 blood alcohol limit.
Lack of scienter requirement in statute prohibiting driving with a detectable amount of a controlled substance doesn’t violate due process
State v. Michael R. Luedtke, 2014 WI App 79, petition for review granted 10/15/14, affirmed, 2015 WI 42 (posts here and here); case activity
Section 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance. In addition, Luedtke’s due process rights were not violated when the state crime lab destroyed his blood sample before he could have it independently tested.
Exigent circumstances justified warrantless entry into apartment; officer’s earlier steps past the threshold “irrelevant”
State v. Cordarol M. Kirby, 2014 WI App 74; case activity
The court of appeals holds that “while exigent circumstances may justify entry, the fact that entry has already been made does not necessarily invalidate reliance on the exigent circumstances doctrine.” (¶22). Thus, because in this case there were exigent circumstances justifying police entry into an apartment to locate a backpack the police believed contained firearms, it “does not matter” that an officer had earlier stepped over the threshold of the apartment door to converse with people inside.
Implied consent law covering drivers not arrested for OWI is constitutional; defendant’s consent to blood draw was voluntary
State v. Megan A. Padley, 2014 WI App 65; case activity
The implied consent statute that allows an officer to ask for a driver for a blood sample when the officer lacks probable cause to arrest for OWI but has “reason to believe” the driver committed a traffic violation, § 343.305(3)(ar)2., is not facially unconstitutional. In addition, Padley’s consent to the blood draw in this case was voluntary. Finally, the police had the requisite “reason to believe” that Padley had committed a traffic violation and, thus, the deputy could rely on § 343.305(3)(ar)2. to put to her the choice of consent to a blood draw or automatic penalties.
Federal racketeering conviction counts as prior drug offense under § 961.41(3g)(c)
State v. Rogelio Guarnero, 2014 WI App 56, petition for review granted 11/14/14, affirmed, 2015 WI 72; case activity: 2013AP1753-CR; 2013AP1754-CR
Guarnero’s conviction for violating the Federal Racketeer Influenced and Corrupt Organizations (RICO) Act was a conviction for a crime “under a statute … relating to controlled substances,” and therefore qualified as a prior offense under the repeat drug offender enhancement provision of § 961.41(3g)(c), because the predicate acts of racketeering involved, among other things, controlled substance offenses.
State’s complaint need not precisely allege date of child sexual assault offenses
State v. Brian Kempainen, 2014 WI App 53, petition for review granted 9/18/14, affirmed, 2015 WI 32; case activity
In this case, the circuit court dismissed 2 counts of sexual assault of a child against Kempainen because the charges failed to provide sufficient notice of when the assaults occurred thus violating due process. The court of appeals, clarifying the test in State v. R.A.R. and State v. Fawcett, reversed and held that the date of the crimes need not be precisely alleged.
Good-faith exception to exclusionary rule means evidence from unlawful use of GPS device can be admitted
State v. Scott E. Oberst, 2014 WI App 58; case activity
The good faith exception to the exclusionary rule applies to evidence obtained during a period when binding Wisconsin appellate precedent permitted the warrantless installation of a global positioning system (GPS) device. Thus, even though the installation of the GPS device on the defendant’s vehicle was unconstitutional under United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), exclusion of the evidence obtained from the device is an inappropriate remedy.