On Point: Published 2015

State ex rel. Rockie L. Douglas v. Brian Hayes, 2015 WI App 87; case activity (including briefs)

Douglas’s probation was improperly revoked based on his refusal to answer his probation agent’s inquiry about Douglas’s suspected involvement in various criminal activities while on probation because he was not sufficiently informed, prior to his refusal, that he had both use and derivative use immunity related to any information he would have provided the agent.

State v. Timothy L. Finley, Jr., 2015 WI App 79, petition for review granted, 1/11/16, affirmed, 2016 WI 63; case activity (including briefs)

In an important decision addressing how to apply State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829 N.W.2d 482, the supreme court’s recent muddling of plea withdrawal standards, the court of appeals holds that when a defendant is mistakenly told the maximum sentence is less than the law allows, the error “is not curable, after the fact, by ‘commutation’ of an otherwise lawful sentence down to the maximum amount of punishment the defendant was incorrectly informed he or she faced at the time of the plea.” (¶37). 

State v. Christopher J. Oatman, 2015 WI App 76; case activity (including briefs)

The statute prohibiting a registered sex offender from intentionally photographing a minor without parental consent, § 948.14, violates the First Amendment because it “indiscriminately casts a wide net over expressive conduct protected by the First Amendment ….” (¶18, quoting State v. Stevenson, 2000 WI 71, ¶22, 236 Wis. 2d 86, 613 N.W.2d 90).

State v. Ryan H. Tentoni, 2015 WI App 77; case activity (including briefs)

Tentoni does not have an objectively reasonable expectation of privacy in the text messages delivered to another person’s phone and therefore can’t seek to suppress the text messages and other subsequently obtained phone records as fruit of the government’s illegal search of the phone.

State ex rel. Christopher W. Baade v. Brian Hayes, 2015 WI App 71; case activity (including briefs)

Section 973.155(4) says that sentence credit granted to inmates serving sentences of one year or less in a county jail or a house of correction “shall include earned good time….” That language doesn’t apply to inmates who are placed on probation and given conditional jail time with good time because probation condition time isn’t a sentence.

Wisconsin Carry, Inc. & Thomas Waltz v. City of Madison, 2015 WI App 74, petition for review granted 1/11/16, reversed 2017 WI 19; case activity (including briefs)

The state statute preempting certain local firearm regulations, § 66.0409(2), doesn’t apply to the rule prohibiting weapons on city buses adopted by the Madison Transit and Parking Commission. The plain language of the statute shows the legislature chose limited language that applies only to “ordinances” or “resolutions” enacted by a political subdivision, and the Commission’s rule isn’t an “ordinance” or “resolution” under well-established law, Cross v. Soderbeck, 94 Wis. 2d 331, 342, 288 N.W.2d 779 (1980).

State v. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

State v. Tommy Lee Branch, 2015 WI App 65; case activity (including briefs)

The circuit court had no authority to order cash seized from Branch on his arrest to be used to pay court obligations because there was no basis for concluding the money was not subject to return under § 968.20. As the court of appeals puts it, the cash Branch had at the time of his arrest was no different from any other personal property he had when arrested. “Had [Branch] been wearing a $200 Stetson hat, a $300 Gucci belt, or a pair of $500 Allen Edmonds shoes, the State would not be allowed to seize those items of personal property and sell them on eBay to pay Branch’s debts.” (¶10).

Steven Michael Leonard v. State of Wisconsin, 2015 WI App 57; case activity (including briefs) NOTE: This case’s analysis of whether DC is a misdemeanor crime of domestic violence is effectively overruled by Doubek v. Kaul, 2022 WI 31.

The court of appeals concludes that there’s no basis in the record for determining whether Leonard’s disorderly conduct conviction qualifies as a “misdemeanor crime of domestic violence” under the federal firearm prohibition, 18 U.S.C. § 922(g)(9), and therefore he is not barred from possessing a firearm under that statute. The court also holds that Leonard’s disorderly conduct “involv[ed] the use of” one of Leonard’s guns and therefore § 968.20(1m)(b) bars the return of that gun.

State v. Gregory Mark Radaj, 2015 WI App 50; case activity (including briefs)

A defendant who committed a felony before the effective date of the law mandating a $250 DNA surcharge for each felony conviction, but who is sentenced after that effective date, cannot be made to pay the surcharge on each felony conviction because that violates the prohibition against ex post facto laws. Instead, the defendant may only be subject to a single discretionary surcharge of $250.