On Point: C. Unpublished Opinions

State v. Kim M. Lerdahl, 2014AP2119-CR, District 3, 8/4/15 (one-judge decision; ineligible for publication); case activity (including briefs)

In an interesting decision that sheds some light on how to apply the newly-adopted “reasonable mistake of law” doctrine to traffic stops, State v. Houghton, 2015 WI 79, ___ Wis. 2d ___, ___ N.W.2d ___,  the court of appeals holds that it a police officer’s mistaken belief that the truck she stopped was required to have a center high-mount stop (or brake) lamp (CHMSL) was not a reasonable mistake of law and, therefore, the stop was unlawful.

Michelle L. Steele & State of Wisconsin v. Jason G. Foster, 2014AP1947, District 3, 7/31/15 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court’s held Foster in contempt for failing to comply with the court’s child support payment order. While the circuit court’s findings of fact in support of its contempt order were “lacking” (¶19), the record overall supports the contempt order.

Dane County DHS v. D.M., 2014AP2291, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective for arguing § 48.415(6) is unconstitutional as applied to D.M., as she fails to demonstrate that the County made it impossible for her to satisfy the conditions for return of her child, D.L.

Oneida County v. Randall J. Busarow, 2014AP2766, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Though there wasn’t direct evidence of exactly when Busarow drove and whether he was intoxicated at that time, the state need not prove the elements of an offense only by direct evidence; reasonable inferences from the evidence may suffice. Bautista v. State, 53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971). The evidence in this case supported the reasonable inferences that Busarow was intoxicated when he drove and that he drove within three hours of the blood test.

State v. Tammy R. Fullmer, 2015AP640-CR, District 4, 7/30/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Trial counsel was deficient for failing to effectively impeach the officer’s testimony that Fullmer failed to stop in front of a stop line because the intersection in question didn’t have a stop line; however, there were multiple other observations the officer made that justified the traffic stop even in the absence of the stop line violation (e.g., extremely slow driving, driving down the middle of a two lane road, weaving in her lane), so Fullmer wasn’t prejudiced. (¶¶4-7, 11, 14).

State v. Steven Ray Gaddis, 2015AP130-CR, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even the sentencing judge admitted his sentencing explanation “could have been more extensive” (¶10). But, hey, it was good enough for government work.

State v. Ali H., 2015AP41, District 1, 7/28/15 (one-judge decision; ineligible for publication); case activity

Though the juvenile court judge “was perhaps imprecise with its language,” the court of appeals concludes the judge did not erroneously apply adult sentencing considerations of punishment and deterrence when it decided to order Ali placed at Lincoln Hills.

State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.

Derrick P. v. Anita P., 2014AP2570 & 2014AP2571, District 4, 7/23/15 (one-judge decision; ineligible for publication); case activity

Anita P. raised equal protection and due process challenges to § 48.415(4)(a) for the first time on appeal, and the court of appeals finds it’s not in the interest of justice to decide the challenges. We describe the issues in more detail below, since practitioners handling TPR cases arising out of placement denials in family court may want to consider raising them (in the trial court first, of course).

Kenosha County DHS v. A.C., 2015AP151, District 2, 7/22/15 (one-judge decision; ineligible for publication); case activity

Trial counsel for A.C. in his TPR proceeding wasn’t ineffective for failing to tell A.C. that his incarceration was not enough by itself to terminate his parental rights or for failing to challenge the TPR proceeding on the basis that the grounds were unconstitutional as applied to A.C. because, based on his incarceration, the conditions for return were impossible to meet.