On Point blog, page 105 of 266
COA: No IAC for plea advice or lack of plea withdrawal; also no new factor
State v. Terrell Antwain Kelly, 2017AP1584, 7/31/18, District 1 (not recommended for publication); case activity (including briefs)
Kelly was charged with both a long-ago second-degree sexual assault of a child and several domestic violence counts (the victim was the same). The state offered him a choice between two plea deals: one in which he would plead to the sexual assault with the DV counts dismissed and read in, and one in which he would plead to the DV counts with the sexual assault dismissed and read in.
Non-custodial interrogation became custodial, so Miranda warnings were required
State v. Brian D. Frazier, 2017AP1249-CR, District 4, 8/2/18 (not recommended for publication); case activity (including briefs)
Frazier agreed to drive himself to the police station to answer some questions and was assured when the questioning began that he was not under arrest and did not have to answer questions. But the initial non-custodial encounter was transformed into custody for purposes of Miranda by the officer’s subsequent words and actions, triggering the need for the Miranda warning. The officer never read Frazier the warning, so the confession he gave must be suppressed.
Once committed, always committed . . . at least under Chapter 51
Waukesha County v. M.J.S., 2017AP1843, 8/1/18, District 2, (1-judge opinion, ineligible for publication), case activity
In May On Point reported a defense win in this case. One week later, Waukesha County moved for reconsideration. The court of appeals just granted the motion and issued this new opinion. The difference between the two is that the May opinion only addressed (and reversed) the circuit court’s involuntary medication order. The August opinion addresses (and affirms) the circuit court’s order to extend M.J.S.’s commitment, while maintaining the reversal of his involuntary medication order. The court of appeals’ reasons for affirming the extension of commitment are unsettling.
Trial counsel was ineffective for failing to investigate, present defense witnesses
State v. Tanya Lynn Schmit, 2017AP871-CR, District 3, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Schmit was charged with OWI. She told her trial lawyer there were two witnesses who would support her defense that she wasn’t the driver, but trial counsel didn’t interview the witnesses or call them at trial. Trial counsel’s failure constitutes deficient performance and the deficiency was prejudicial.
Circuit court properly denied duplicate sentence credit on consecutive sentence
State v. Terry Terrell Anderson, 2017AP2165-CR, District 1, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Anderson sought pretrial custody credit against sentences that were ordered to run consecutively to a previously imposed sentence. Because the time in custody was credited to the previously imposed sentence, he’s not entitled to the same credit against the later-imposed consecutive sentences.
Shooting while being attacked in street brawl does not justify self-defense instruction
State v. Devon L. Loggins, 2017AP2045-CR, 7/31/18, District 1 (unpublished); case activity (including briefs)
A fight between the Loggins and Jones families escalated into a violent melee involving at least 20 people. Some of them were punching Loggins, who saw a gun fall from one participant’s hoodie. He picked it up. Someone kicked him, and he started shooting. Two people died. Others were injured. At trial, Loggins sought a self-defense instruction, but the circuit court wouldn’t give it.
Court of appeals affirms orders for commitment and involuntary medication under the 5th standard
Rock County v. B.A.G., 2018AP782, 7/26/18, District 4, (1-judge opinion, eligible for publication); case activity
B.A.G. challenged a court order to commit and medicate him under §51.20(1)(a)2e (the 5th standard). His main objection appears to be that being undressed outside in cold weather was insufficient evidence to commit him. The court of appeals does not articulate the challenge he lodged against the medication order. Regardless, he lost on both issues. However, the court of appeals opinion on the medication order suggests a possible defect in the statute.
State’s failure to file a brief leads to (partial) defense win
State v. Aman D. Singh, 2017AP1609, 7/26/18, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
We last saw Singh attempting, and failing, to get his long-ago second-offense OWI dismissed by a writ of coram nobis. After that, he went back to court arguing that the count should be dismissed because of Wis. Stat. § 345.52 (which says that a judgment in a traffic ordinance action bars state proceedings for the same violation) and Wis. Stat. § 973.17 (which says excessive sentences are void).
Defendant not entitled to sentence credit for charges dismissed but not read in
State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)
Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.
Deputy had reasonable suspicion to extend stop based on driver’s odor of alcohol and glassy eyes
State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)
Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.