On Point blog, page 122 of 261
No relief in TPR
Taylor County DHHS v. S.A.L., 2016AP2369, 6/7/17, District 3 (one-judge decision; ineligible for publication); case activity
S.A.L. appeals the termination of her parental rights to her two children. She alleges ineffective assistance of her trial counsel and that the court failed to properly exercise discretion during the dispositional phase. The court of appeals affirms.
Failure to tell defendant he might get different judge not ineffective
State v. Julius Lee Sanders, 2014AP2644, 6/6/2017, District 1 (not recommended for publication); case activity (including briefs)
Julius Sanders appeals from his judgment of conviction and the denial, without a hearing, of his postconviction motion.
DHS’s transfer of NGI acquittee to DOC custody violated circuit court’s commitment order
State v. Bruce C. Brenizer, 2015AP2181, District 3, 6/6/17 (not recommended for publication); case activity (including select briefs)
The Department of Health Services didn’t have authority to transfer Brenizer to the Department of Corrections because the circuit court’s commitment order unambiguously states that Brenizer is committed to DHS custody for life unless his custody is terminated under § 971.17(5) (1991-92).
Defense win! Defense counsel’s failure to object warranted new trial
State v. David Earl Harris, Jr., 2016AP548-CR, 5/31/17, District 1 (unpublished); case activity (including briefs)
The state charged Harris with heinous conduct giving rise to false imprisonment, sexual assault, and strangulation charges. At trial, the DA introduced a copy of a TRO that pre-dated the criminal complaint but mirrored the facts that it alleged. Defense counsel didn’t mind letting the jury see the TRO because she thought it showed that the TRO allegations were false. But she didn’t notice the part of the TRO where the court commissioner found reasonable grounds to believe that Harris had committed all heinous conduct described in the TRO. Uh oh. Guess what happened?
Totality of circumstances justified investigative detention
State v. Sara Ann Ponfil, 2016AP2059-CR, 5/31/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
A police officer discovered cocaine after he detained Ponfil, who, as the officer approached, got out of one of two vehicles parked next to each other outside a bar. The court of appeals concludes that, considered together, the bar’s status as a “high-crime area,” the behavior of the vehicles’ occupants, and the presence of a known gang member in the other vehicle provided reasonable suspicion to believe she was engaged in illegal conduct.
Fines and forfeitures affirmed due to defendant’s failure to carry burden or proof
State v. Paul A. Adams, 2016AP1149, 5/31/17, District 2 (1-judge opinion, ineligible for publication); case activity
Adams, an inmate, objected to the garnishment of his prison wages to pay fines and forfeitures assessed in various traffic and OWI cases. The court of appeals rejected all of his claims because Adams, the moving party, bore the burden of proof but failed to offer any evidence that the amounts assessed were incorrect.
Is a defendant’s out-of-court criticism of the judge free speech or contempt of court?
State v. William A. Wisth, 2016AP1481-CR, 5/24/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
After Wisth, acting pro se, and the State picked a jury for his criminal case, the judge instructed the jurors “not to discuss the case with anyone.” The next day before trial, Wisch appeared by the public entrance to the courthouse with a sign and a stack of flyers that, in short, said “don’t trust Judge Malloy or Ozaukee County.” He tried to hand a flyer to a woman walking by, but she shook her head. She did not see what the sign or the flyers said. Turns out she was a juror. Uh oh.
Defendant made prima facie showing of invalid waiver of counsel in prior OWI case
State v. Scot Alan Krueger, 2016AP2438-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erred in holding Krueger failed to make a prima facie showing that he didn’t validly waive the right to counsel in a prior OWI conviction.
Cost of beefing up security system was a proper item for restitution
State v. Shaun R. Ezrow, 2016AP1611-CR, 5/25/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
The cost a business incurred in enhancing its security system after an employee stole money was a proper item of restitution under § 973.20.
Too mentally ill to grasp the advantages and disadvanages of treatment, but well enough to waive the 5th Amendment?
Crawford County v. E.K., 2016AP2063, 5/18/17, District 4 (1-judge opinion, ineligible for publication); case activity
This case presents multiple SCOW-worthy issues. One is an interesting constitutional dilemma. The County sought to extend E.K.’s commitment and involuntary medication order and, as evidence, offered threatening emails that E.K. had allegedly sent. Defense counsel objected because the emails had not been authenticated. So the County called E.K. to the stand to authenticate them. Defense counsel objected on 5th Amendment grounds. This prompted E.K. to say: “I’ll waive that. Yes, those are my emails.”