On Point: C. Unpublished Opinions

State v. Gregory J. McMillan, 2016AP127-CR, 12/16/2016, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

12:30 a.m., Saturday, Dodge Charger, driving away from tavern-rich area of McFarland. No bad driving, but a “relatively sudden” right turn with a squad two car lengths behind. The turn is onto a dead-end street with only “large industrial-type buildings.” Officer drives around a back way and sees McMillan standing at the back of his car talking on his phone. From where he’s standing, McMillan could have snuck into the shadows had he seen the squad following him, instead of coming around a back way. Officer stops McMillan. Reasonable suspicion?

State v. Shannon Olance Hendricks, 2015AP2429-CR, 12/15/2016, District 1/4 (not recommended for publication), petition for review granted 5/15/17, affirmed, 2018 WI 15 ; case activity (including briefs)

A defendant pleading to a sexual assault involving sexual contact (as opposed to sexual intercourse) is required to understand the meaning of “sexual contact.” If he or she does not, he or she is entitled to plea withdrawal. State v. Jipson, 2003 WI App 222, ¶9, 267 Wis. 2d 467, 671 N.W.2d 18. Here, the court of appeals holds that a defendant pleading to child enticement with a purpose to engage in a sexual assault by “sexual contact” need not understand the meaning of this phrase.

State v. David H. Ninnemann, 2016AP1294-CR, 12/14/2016, District 2 (1-judge decision; ineligible for publication); case activity (including briefs)

David Ninnemann appeals from sentencing after revocation of his probation. He challenges the length of his jail sentences and the court’s order that he register as a sex offender, but the court of appeals upholds both of the trial court’s discretionary decisions.

E.C. v. Susan Krueger, 2015AP2196, 12/13/16, District 1 (not recommended for publication); case activity

E.C., an elderly woman with Alzheimer’s, planned for her future while she was still competent. She named her son, G.C., as her power of attorney for finances and health care. After she became incompetent, her family began fighting about her care. Krueger, E.C.’s daughter, filed a Ch. 54 guardianship proceeding. The issue in this case is whether Chapter 54 can trump a person’s advance planning.

State v. George W. Mallum, III, 2016AP765-CR, District 1, 12/13/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Mallum was convicted of two counts of disorderly conduct arising out of a single incident, but because the charges were not identical in fact the convictions are not multiplicitous.

State v. A.W., 2016AP121 through 125, 12/8/16, District 1 (1-judge opinion; ineligible for publication); case activity

When A.W. did not appear for her pretrial and was not reachable by phone, the court entered a default finding as to grounds for a TPR. She moved to vacate that finding, but then withdrew her motion. On appeal, she argued that (1) trial counsel was ineffective for advising her to withdraw the motion to vacate, and (2) the circuit court should have vacated the default so that she could address false information admitted in her case. The court of appeals refused to address the 2nd argument for reasons that penalized A.W. for mistakes her appellate lawyer allegedly made.

State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)

Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.

State v. Travis J. Manteuffel, 2016AP96-CR, 12/6/16, District 3 (1-judge decision; ineligible for publication); case activity (including briefs)

State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756, held it an ex post facto violation to require misdemeanants to pay the $200 DNA surcharge where the law imposing it went into effect after they had committed their crimes.

State v. Anton R. Dorsey, 2015AP648-CR, District 3, 12/6/16 (per curiam; not citable as precedent or for persuasive value), petition for review granted, 4/10/17, affirmed, 2018 WI 10; case activity (including briefs)

You may not cite this per curiam opinion as binding precedent or for persuasive value in any Wisconsin court, see § 809.23(3)(b), but On Point is telling you about it because the court of appeals concludes that the purported “greater latitude” rule in § 904.04(2)(b)1. is not a codification of the “greater latitude” rule created by case law regarding admission of other acts evidence in child sex cases. While you can’t cite this decision for authority, you may and should use the court’s reasoning for its conclusion to counter the claim of a prosecutor or circuit judge that § 904.04(2)(b)1. codifies a “greater latitude” rule.

State v. Gerrod R. Bell, 2015AP2667-2668-CR, 12/1/16, District 4 (not recommended for publication), petition for review granted 3/13/2017, affirmed, 2018 WI 28; case activity (including briefs)

Bell was convicted of sexually assaulting two sisters aged 14 and 17. At trial, the DA told the jury that it couldn’t acquit unless it first concluded that the sisters were lying and unless Bell established a reason for them to lie. On appeal, Bell argued that the DA’s argument violated the principles that the State has to prove guilt beyond a reasonable doubt, a defendant is presumed innocent, and a defendant has the right not to testify at trial. Bell also asserted ineffective assistance based on his lawyers failure to redact exhibits provided to the jury.