On Point: C. Unpublished Opinions

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State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)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 A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).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.

State v. Timothy L. Landry, 2017AP1739-CR, 6/6/18, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

Landry pled to 2 counts of 4th-degree sexual assault and was ordered to comply with §973.048(1m)(a), Wisconsin’s sex offender registry. On appeal, he argued that the trial court had not made the necessary findings or explained its decision adequately a la Gallion. He lost.

State v. James E. Gray, 2017AP452-CR, 6/6/18, District 2, (not recommended for publication); case activity (including briefs)

The court of appeals here affirms several trial court evidentiary decisions and holds that the State presented sufficient evidence to support convictions for 5 counts  of identity theft.  As you might guess, the decision hinges on the harmless error doctrine and facts specific to this case.

State v. F.E.L., 2017AP2489, 6/5/18, District 1 (one-judge decision; ineligible for publication); case activity

F.E.L. seeks to withdraw his no contest plea at the grounds phase of his TPR proceeding. He contends there was an insufficient factual basis for the single ground he pled to, failure to assume parental responsibility.

State v. Anthony Iven Jones, A/K/A Hashim Hasan, 2017AP364, 6/5/18, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury found Jones guilty of bail jumping. one of his bond conditions had been that he stay 500 feet away from his former wife. He made a threatening phone call to her and was discovered by a police officer to be “approximately 92 feet away” from her house. He first claims there was insufficient evidence to support his conviction, but the court does not agree, based on the essential facts just noted. (¶12).

State v. Anthony Donte Dixon, 2017AP2221-2222-CR, 6/5/18, District 1 (1-judge opinion, eligible for publication); case activity

Dixon wasn’t happy with his trial lawyer. They hadn’t communicated before the final pre-trial conference. When they did communicate, Dixon told his lawyer that he wanted him to contact several alibi witnesses and provided their names and numbers. Two witnesses didn’t return counsel’s call. One “simply gave her information” [no explanation of that means.] On the day of the trial, counsel informed the court that Dixon wanted to fire him and was prepared to get a new lawyer on his own. The trial court denied the request so Dixon tried his case pro se.

Winnebago County v. Lesa L. Maus, 2017AP1979, 5/30/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Maus challenges her stop on the ground that the citizen witness who called in a driver going the wrong way on the interstate said the car was beige, but her car, the one stopped, was black.