On Point blog, page 204 of 266
Ineffective assistance of counsel — failure to demand speedy trial, communicate with defendant, and impeach the victim. Sentencing — unduly harsh sentence.
State v. Jerry Lee Carson, 2012AP2616-CR, District 1, 9/17/13; court of appeals decision (not recommended for publication); case activity
Ineffective assistance of trial counsel
Carson, convicted of second degree recklessly endangering safety, claimed his trial lawyer was ineffective on various grounds. The court of appeals holds counsel was not ineffective for failing to:
- Demand a speedy trial. Carson was not prejudiced by the delay beyond the statutory speedy trial deadlines.
Court of appeals: of curative instructions and smelly skunks
State v. Omar J. Smith, 2012AP863-CR, District 1, 9/10/13; (not recommended for publication); case activity
A jury convicted Smith of first-degree reckless homicide while armed as party to a crime and a host of other crimes. Two issues are noteworthy.
Miranda-Edwards issue: Police began questioning Smith while he was in custody. He invoked his right to counsel, so they stopped. They re-initiated questioning (with fresh Miranda warnings) during which Smith said things like “I kind of want a lawyer present,
Law of the case doctrine — procedure on remand
State v. Gary Wieczorek, 2012AP2217-CR, District 3, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity
The circuit court had previously held that Wieczorek was unlawfully seized by the police on his front porch, but the court of appeals reversed that holding and remanded the case for further proceedings. (¶¶2-4). On remand, Wieczorek again alleged the seizure was unlawful because there were no exigent circumstances.
TPR — improper “golden rule” argument to jury
State v. Samantha S., 2013AP1503 & 2013AP1504, District 1, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity: 2013AP1503; 2013AP1504
During closing arguments at the fact-finding hearing the guardian ad litem referred to Samantha’s failure to keep visitation appointments and said this failure confused the children, who as a consequence were becoming attached to the foster caregivers. (¶2). The court holds this statement did not amount to an improper “golden rule”
Ch. 51 mental health commitment — sufficiency of evidence to extend commitment and order involuntary medication
Outagamie County v. Aaron V., 2013AP808, District 3, 9/10/13; court of appeals decision (1-judge; ineligible for publication); case activity
The evidence supported an extension of Aaron’s ch. 51 commitment even though Dr. Dave, the county’s expert, did not specifically testify Aaron would “decompensate” or become dangerous if treatment were withdrawn and did not provide reasons for his opinion that Aaron would be a proper subject for commitment if treatment were withdrawn:
¶15 ….
TPR — consideration of harm of severing family connection; rejection of guardianship by paternal grandmother
State v. Angie S., 2013AP1412, District 1, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
In a fact-intensive decision, the court of appeals rejects Angie S.’s arguments that the trial court erroneously exercised its discretion when terminating her parental rights by: (1) failing to properly consider the effect of termination on the child’s biological family; and (2) inadequately considering whether the child’s paternal grandmother was a suitable candidate for guardianship.
OWI — probable cause to arrest; information from ER nurse regarding blood alcohol test
Marathon County v. Eric G. Fischer, 2013AP760, District 3, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
Police lacked probable cause to arrest Fischer because a “tip” from an ER nurse that Fischer’s BAC was “0.15 percent” did not provide a reliable basis to conclude Fischer was operating while intoxicated.
Fischer was the operator of a motorcycle that crashed. (¶2). Police collected scant information at the scene before Fischer was taken to the hospital.
Another unpublished decision holds enhancer time may be used for the extended supervision portion of an enhanced misdemeanor sentence
State v. Emmit L. Groce, Jr., 2013AP844-CR, District 1, 9/4/13; court of appeals decision (1-judge; ineligible for publication); case activity
Groce was convicted of criminal damage to property as a repeat offender under § 939.62(1)(a) and given a bifurcated sentence consisting of one year of confinement in prison and one year of extended supervision. (¶¶2-3). He later requested a sentence modification under State v. Gerondale,
OWI — reasonable suspicion for traffic stop and OWI investigation
State v. Tony L. Wyatt, 2013AP728-CR, District 2, 8/28/13; court of appeals decision (1-judge; ineligible for publication); case activity
A sheriff’s deputy stopped the car Wyatt was driving after checking the license plate of a car driving in front of the deputy and determining the car’s owner—a female—didn’t have a valid driver’s license. If the deputy didn’t know before the stop that the driver was male, the stop was lawful under State v.
Restitution for theft may include items defendant denies stealing
State v. Deborah A. Schicker, 2013AP651-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity
Schicker pleaded guilty to a single count of theft. Of the multiple items listed as stolen in the complaint, she admitted to taking only the two items recovered before she was charged. (¶¶2-3). After a restitution hearing she was ordered to pay for the loss of the unrecovered items as well as for another item (a bracelet) not even listed in the complaint.