On Point: Published 2020

On December 23, 2020, the court of appeals ordered publication of the following criminal law related case:

State v. Jack B. Gramza, 2020 WI App 81 (mandatory minimum for OWI trumps SAP early release requirement)

On November 19, 2020, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Manuel Garcia, 2020 WI App 71 (voluntary statement obtained in violation of Miranda can’t be used in state’s case-in-chief—period)

State v. Alan S. Johnson, 2020 WI App 73 (“Marsy’s Law” gives alleged victim standing to intervene in opposition to defendant’s Schiffra/Green motion)

State v. Jack B. Gramza, 2020 WI App 81; case activity (including briefs)

If an inmate serving the initial confinement (IC) portion of a bifurcated sentence completes the Substance Abuse Program (SAP), § 302.05(3)(c)2. mandates that the sentencing court “shall” modify the inmate’s sentence by converting the remaining period of IC to extended supervision (ES) so that the inmate is released from confinement to ES. The court of appeals holds this mandate doesn’t apply to an inmate who is serving a mandatory minimum term of IC for an OWI offense if the inmate hasn’t yet served the mandatory minimum term.

State & T.A.J. v. Alan S. Johnson, 2020 WI App 73, petition to review granted, 2/26/21; case activity (including briefs)

This is the first of what will likely be a series of appellate court decisions that re-make criminal litigation in light of “Marsy’s Law,” the recently-passed crime victims’ rights amendment to Article I, § 9m, of the Wisconsin constitution.

On October 29, 2020, the court of appeals ordered the publication of the following criminal law related opinions:

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.

On September 30, 2020, the court of appeals ordered publication of the following criminal law related decisions:

State v. Scott W. Heimbruch, 2020 WI App 68; case activity (including briefs)

When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read  the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form.

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet. 

On August 31, 2020, the court of appeals ordered publication of the following criminal law related cases: