On Point blog, page 202 of 263
Judicial bias — sentencing after revocation
State v. Anthony M. Teller, Jr., 2013AP502-CR, District 3, 8/13/13; court of appeals decision (1-judge; ineligible for publication); case activity
The sentencing court exhibited objective bias in the form of the appearance of bias based on its statements at the original sentencing hearing:
¶21 …. The court told Teller he had “bad news” in the form of “a two-year prison sentence coming [his] way,” and, if he came back to court,
Ineffective assistance of counsel — inadequate presentation of defense of misidentification
State v. William M. Grunwald, 2012AP2531-CR, District 4, 8/8/13; court of appeals decision (not recommended for publication); case activity
Grunwald was charged with reckless endangerment for kicking Stevens, who was lying on the ground after being beaten by Houghton. Grunwald’s defense at trial was that he was mistakenly identified by eyewitnesses to the incident. After his conviction he alleged trial counsel was ineffective in his presentation of the defense,
Evidence was insufficient to establish lack of competency to refuse medication
Winnebago County v. Donna H., 2013AP80, District 2, 7/31/13; court of appeals decision (1-judge; ineligible for publication); case activity
Applying the supreme court’s recent decision in Outagamie County v. Melanie L., 2013 WI 67, the court of appeals concludes Winnebago County failed to show Donna H. is not competent to refuse medication. The applicable statute, § 55.14(1)(b), requires the County to show that the advantages and disadvantages of accepting medication have been explained to the individual subject to a possible involuntary medication order.
TPR — sufficiency of evidence establishing parent would not meet conditions for return of children
State v. Shipria C., 2013AP637, 2013AP638, & 2013AP639, District 1, 8/6/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP637; 2013AP638; 2013AP639
In a fact-intensive decision, the court of appeals rejects Shipria C.’s argument that the evidence was insufficient to prove she would not meet the court-ordered conditions for the return of her children within nine months of the fact-finding hearing.
TPR — propriety of summary judgment in cases alleging abandonment
Dane County DHS v. Wesley J., 2013AP1226, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
Steven V. v. Kelley H., 2004 WI 47, 271 Wis. 2d 1, 678 N.W.2d 856, does not erect a general bar to summary judgment in TPR cases alleging abandonment as the grounds for termination:
¶15 I disagree with Wesley’s assertion that Steven V.
OWI — Probable cause to request preliminary breath test; admissibility of evidence of defendant’s refusal to take the test
State v. Raylene A. Brinkmeier, 2013AP15-CR, District 4, 8/1/13; court of appeals decision (1-judge; ineligible for publication); case activity
The police had probable cause under § 343.303 to request Brinkmeier to submit to a preliminary breath test (PBT):
¶13 Contrary to Brinkmeier’s argument, the evidence supporting probable cause in this appeal does not differ significantly from the evidence in [County of Jefferson v.
Field sobriety tests may be a “search” under the Fourth Amendment, but that doesn’t change the legal standard governing when an officer may request they be performed
Town of Freedom v. Matthew W. Fellinger, 2013AP614, District 3, 8/6/13; court of appeals decision (1-judge; ineligible for publication); case activity
Fellinger argues that field sobriety tests are searches under the Fourth Amendment because “[a]n inherent right as a human being is to control and coordinate the actions of [his or her] own body[,]” and, therefore “a fundamental expectation of privacy is implicated when a person is subject to the performance of [field sobriety tests].” (¶12).
Terry stop was unlawful because there was no reasonable suspicion to believe defendant was loitering or dealing drugs
State v. Ryan Erik Diggins, 2012AP526-CR, District 1, 7/30/13; court of appeals decision (not recommended for publication); case activity
There was no objectively reasonable suspicion that Diggins was loitering in violation of Milwaukee’s loitering ordinance, § 106-31(1), where Diggins was seen standing for five minutes, doing nothing, at a gas station– “a place to which the public is invited”–and then moved across the street to a bus stop–“another equally public place”–even though both places were in a high crime area:
¶13 Here,
Yet another take on how to structure bifurcated sentences for an enhanced misdemeanor
State v. Gabriel Griffin, 2012AP2631-CR, District 1, 7/30/13; court of appeals decision (1-judge; ineligible for publication); case activity
Agreeing with State v. Gerondale, 2009AP1237-CR and 2009AP1238-CR (Wis. Ct. App Nov. 3, 2009) (unpublished), and State v. Ash, No. 2012AP381-CR (Wis. Ct. App. Aug. 15, 2012) (unpublished), that there is a conflict in § 973.01 which affects the structure of enhanced misdemeanor sentences,
Conspiracy — sufficiency of evidence; propriety of response to jury question; multiplicitousness of conspiracy and solicitation charges. Sentencing — erroneous exercise of discretion in imposing fine
State v. Ronnie L. Thums, 2012AP929-CR, District 4, 7/25/13; court of appeals decision (not recommended for publication); case activity
Sufficiency of evidence of conspiracy
Thums was charged with offering money to Trepanier, a fellow prison inmate, to kill Thums’s ex-wife and others associated with her. (¶2). In response to Trepanier’s questions about how he’d be paid, Thums told Trepanier to burglarize his ex-wife’s mother’s home and then drew a map depicting the location of that home and his ex-wife’s home.