On Point: C. Unpublished Opinions

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.

State v. R.D.W., Sr., 2018AP351, 6/19/18, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

There were only 3 black jurors among the 25 on the panel for the grounds trial in this TPR cases. The ADA used peremptory challenges to strike all of them. The ensuing Batson hearing concerned only one–Juror 2. As proof of non-discriminatory intent, the DA filed a copy of her NAACP membership card, showed her Coretta Scott King tattoo, and explained why she struck Juror 2.

State v. Marquis Lakeith Pendelton, 2017AP2081-CR, 6/19/18, District 1, (1-judge opinion; ineligible for publication); case activity (including briefs)

A caller reported to police that 2 suspicious males had been looking into cars parked in a church lot at 1:30 a.m, at 68th and Silver Spring in Milwaukee and had just run away. An officer thought that the dispatcher said that one of the males was Black and wearing a dark hoodie.

County of Milwaukee v. Ross J. Romenesko, 2017AP1042-1044, 6/19/18, District 1, (1-judge appeal, ineligible for publication); case activity (including briefs)

Romenesko prevailed below–the circuit court (1) suppressed a revised report relating to his blood sample, (2)  precluded but one of its experts from testifying, and eventually (3) dismissed the the OWI 1st offense and operating with a PAC 1st offense charges against him as a sanction against the County. The court of appeals affirmed the suppression decision but reversed the other 2 decisions.

State v. Laron Henry, 2017AP939-CR & 2017AP940-CR, District 1, 6/19/18 (not recommended for publication); case activity (including briefs)

Henry sought to withdraw his guilty pleas to three crimes. He claimed that with respect to one of the crimes, he didn’t “ratify” his guilty plea, he didn’t understand one of the elements of the crime, and there wasn’t a factual basis for the plea to the crime. The court of appeals rejects his claims.

State v. Scott H. Wenger, 2017AP2305, 6/14/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Wenger got arrested for disorderly conduct and resisting at Art in the Park in Stevens point. The circuit court dismissed the DC but found him guilty, after a bench trial, of resisting. He claims insufficient evidence as to all three elements of resisting an officer:

State v. Jessica M. Randall, 2017AP1518-Cr, District 4, 6/14/18 (1-judge opinion, ineligible for publication), review granted 10/9/18, reversed, 2019 WI 80; case activity (including briefs)

Here’s a rare sighting! One district of the court of appeals has declared that it is not bound by a decision addressing the same set of facts issued by another district. This is what you call SCOW bait (sorry to say, given that this is a defense win). Randall was arrested for OWI, an officer read the “Informing the Accused” card, and she agreed to a blood test. A few days later, her lawyer sent the lab a letter withdrawing her consent. The court of appeals held that Randall had a right to withdraw her consent up to the time when blood was actually tested. But just 6 months ago, the court of appeals reached the opposite result in State v. Sumnicht. 

State v. Mark G. McCaskill, 2017AP2443-CR, 6/14/18, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Police found McCaskill unconscious, smelling of alcohol, and without a shirt or shoes in the driver’s seat of a car parked by a residence. Blood tests showed a .263 BAC. He was convicted of operating with a PAC, 4th offense. He moved for a new trial based on newly-discovered evidence. Though he recalled nothing, a friend who lived less than a mile from where he was parked would testify that he visited her that night and that he was not intoxicated.

State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)

This appeal concerns ineffective assistance of counsel in connection with 2 plea offers. Mbugua claimed that his 1st lawyer provided him incorrect information about option 2 of “plea offer 1” and this caused him to reject “plea offer 1” altogether. He also claims that during a second round of plea bargaining, option 2 of “plea offer 1” remained on the table, and his second lawyer incorrectly advised him to reject it in favor of an entirely new plea offer (we’ll call it “plea offer 2”), which proved to be bad deal. The court of appeals denied both claims for lack of prejudice based upon Lafler v. Cooper, 566 U.S. 156 (2012). A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).

State v. John Patrick Wright, 2017AP2006-CR, 6/12/18, District 1;(1-judge opinion, ineligible for publication), petition for review granted 10/9/18, reversed 2019 WI 45, ; case activity (including briefs)

Police stopped Wright’s car because a headlight was out, but they asked him whether he had a concealed carry permit and weapons in the car. He admitted he had a firearm and explained that he had recently completed the CCW course. Too bad. He was arrested and charged with 1 count of carrying a concealed weapon. He moved to suppress on the grounds that the police lacked reasonable suspicion to question him about a CCW permit and weapons.