On Point: Published 2016

County of Fond du Lac v. Stuart D. Muche, 2016 WI App 84; case activity (including briefs)

Muche threw a high school graduation party  for his son and (gasp!) some of the underage guests brought beer to it. Sheriff’s deputies showed up and cited Muche for violation of Fond du Lac County’s social host ordinance, which resulted in a forfeiture of $1,000. This decision dismisses the forfeiture and, according to the Journal Sentinel, could require changes to “dozens of social host ordinances aimed at combatting underage drinking.” In short, this decision is SCOW bait.

State v. Thomas J. Queever, 2016 WI App 87; case activity (including briefs)

Thomas Queever tried to break into a house. We know this because the home’s security system captured video of him doing so. The circuit court and the court of appeals ordered him to pay the cost of said security system, concluding that the expense of installing it was the “result of a crime considered at sentencing,” even though it was installed prior to the burglary of which Queever was convicted. Does the court of appeals’ authority extend to reversing the arrow of time?

State v. Marie Williams, 2016 WI App 82; case activity (including briefs)

Like other states, Wisconsin has an opioid addiction epidemic. To encourage people to summon emergency aid for someone who has overdosed, the legislature passed §961.443 which provides that that an “aider” is immune from prosecution for the possession of drug paraphernalia under §961.573 or a controlled substance or a controlled substance analog under §961.41(3g) when trying to help a victim of overdose.

State v. David L. Tarlo, 2016 WI App 81; case activity (including briefs)

When’s the last time you saw a defense win on a restitution issue? This child porn case addresses the vexing problem of circuit courts awarding restitution though the victim failed to prove that her losses were “a result of a crime considered at sentencing” as required by Wis. Stat. §973.20(14)(a). 

State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, petition for review granted 1/18/2017, reversed, 2017 WI 104; case activity (including briefs)

This decision is important to anyone who litigates claims for plea withdrawal under § 971.08(2) because it helps clarify the law in two ways. First, it provides two examples of a circuit court’s failure to comply with § 971.08(1)(c)’s requirement that the defendant be warned about the immigration consequences of a plea. Second, it explains what a defendant must allege to make a sufficient showing that his or her plea is likely to result in deportation.

State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)

Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.

State v. Markus S. Holcomb, 2016 WI App 70; case activity (including briefs)

“While sentence diagramming may be the bane of fifth graders everywhere, it is the trick of the trade in statutory construction.” Slip op. ¶9. “Punctuation too is important. . . . It can be the difference between ‘Let’s eat, Grandma!’ and ‘Let’s eat Grandma!'” ¶12. So begins today’s lesson on the proper way to read §939.617, which provides minimum sentences for certain child sex offenses.

State v. Adam M. Blackman, 2016 WI App 69; petition for review granted 6/15/16, reversed, 2017 WI 77; case activity (including briefs)

A recent amendment to Wisconsin’s implied consent law authorizes law enforcement to request a blood, breath, or urine sample from a driver involved in an accident that causes death or great bodily harm even if there is no evidence that the driver was impaired by alcohol or a controlled substance. §343.305(3)(ar)2. If the driver refuses, his license is revoked, but he may request a refusal hearing within 10 days. §343.305(9)(a). But as §343.305(9)(a)5, the refusal hearing statute, is currently written the State could not prevail.

State v. Jason R. Cooper, 2016 WI App 63; case activity (including briefs)

While a conviction for a motor vehicle offense can’t be used to establish a defendant’s repeater status under § 939.62, time a defendant spent in custody serving a sentence for a motor vehicle is still excluded when computing whether any prior convictions for non-motor vehicle offenses occurred within five years of the crime for which the defendant is being sentenced.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..