On Point blog, page 118 of 263

Defense win on postconviction procedure!

State v. Jeffrey S. Roehling, 2016AP35-CR, District 3, 10/3/17, (not recommended for publication), case activity (including briefs)

Haven’t seen defense win in awhile–especially not regarding postconviction procedure. The court of appeals first rejects the State’s contention that a defendant who fails to request an extension of the 60-day deadline for a circuit court to decide a postconviction motion forfeits his grounds for challenging the decision. Next it holds that Roehling’s posctconviction motion alleged facts sufficient to warrant a hearing on his ineffective assistance of counsel claim. That makes this decision a “win win.”

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Expert on child victim reporting behaviors met Daubert standard

State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)

The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).

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No speedy trial violation due to defendant’s effort to exploit “loophole” in OWI statute

State v. Julio Cesar Pacheco Arias, 2017AP228-CR, 9/26/17, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2015, Pacheco-Arias was charged with 2 separate OWI offenses just weeks apart. Because he had 2 prior OWI convictions, both of the 2015 OWIs were charged as a misdemeanor OWI-3rd offenses. Under the law in effect in 2015, if the earlier charge resulted in a conviction, the later charge would, by operation of law, become a felony OWI offense. See §346.63(1)(a), §346.65(2)(am)3 (2015-2016).  As you might guess, the defendant wanted the later charge resolved first in order to avoid a felony conviction. 

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Officer had reasonable suspicion to detain driver for field sobriety tests

State v. Sarah Ann Wallk, 2017AP61, Distirct 1, 9/26/17 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Wallk’s claim that there was insufficient reasonable suspicion to detain her for field sobriety tests after she was stopped for speeding. 

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Court of appeals says conclusory ineffective assistance of counsel claim properly denied without a hearing

Dane County DHS v. N.C., 2017AP788, District 4, 9/21/17, District 4 (1-judge opinion, ineligible for publication); case activity

N.C. filed a postdisposition motion challenging the circuit court’s termination of her parental rights to M.M. She argued, among other things, that her trial lawyer was ineffective in failing to have the termination order entered as voluntary, rather than involuntary.

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Court of appeals upholds TPR summary judgment

J.N.W. v. J.R.P., 2017AP1390, 9/20/17, District 2 (one-judge decision, ineligible for publication); case activity

Robert, the father of Jessica, appeals the termination of is parental rights. Specifically, he argues the trial court erred in granting summary judgment because there were genuine issues of material fact as to whether he failed to communicate with her for more than six months, and even if he did, whether he had good cause for his failure.

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Uncertified DOT driving record + JOC on CCAP + court of appeals opinion = proof of countable prior OWI offense

State v. Kory v. Ambroziak, 2017AP22-CR, 9/19/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

Ambroziak argued that he was incorrectly sentenced for a 2nd-offense OWI because the State had failed to prove the existence of a prior OWI-related offense beyond a reasonable doubt. But the court of appeals held that the State carried its burden. Thus, the circuit court correctly sentenced Ambroziak with second-offense OWI penalties.

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No error in granting guardianship to grandparents

Waukesha County DHHS v. T.C.S., 2016AP1000 & 1001, 9/13/17, District 2 (one-judge decision; ineligible for publication); case activity

This is a case type we rarely come across–an appeal of a guardianship arising out of a CHIPS case. (See generally Wis. Stat. § 48.977.) The circuit court awarded custody of the child at issue to his paternal grandparents; this is the mother’s appeal.

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Placing children with their maternal grandfather was not in their best interests

State v. C.L.H., 2017AP1278-1280, 9/6/17, District 1; (1-judge opinion, ineligible for publication); case activity

A circuit court terminated C.L.H.’s parental rights to her biological children, A.L.H., H.H. and M.J.H. The sole issue on appeal was whether the circuit court’s refusal to place the kids with C.H. (their maternal grandfather) and E.B. (his fiancée) amounted to an erroneous exercise of discretion.  The court of appeals said “no.”

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Challenge to competency of TPR court waived by failure to object

State v. J.M.W., 2017AP158, District 1, 9/6/17 (one-judge decision; ineligible for publication); case activity

J.M.W. contends the steps in the proceedings terminating his parental rights occurred out of order and therefore the circuit court lost competency to conduct a disposition hearing. The court of appeals holds he waived a competency challenge by not raising it in the circuit court first.

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