On Point: C. Unpublished Opinions

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  

Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Probable Cause – PBT, § 343.303

¶11      At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),

County of Fond du Lac v. Nancy C. Bush, 2012AP1486, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Under the implied consent law, a motorist must, when properly requested to submit to a chemical test, answer “promptly,” State v. Neitzel, 95 Wis. 2d 191, 205, 289 N.W.2d 828 (1980), else failure to respond will be construed as refusal.

State v. Daniel Buchanan, 2011AP830-CR, District 1, 10/30/12

court of appeals decision (not recommended for publication); case activity

Hearsay – Prior Consistent Statement, § 908.01(4)(a)2

The prior-consistent statement rule allows substantive admissibility of an out-of-court statement if: “(1) the declarant testifies at trial and is subject to cross-examination concerning the statement; (2) the statement is consistent with the declarant’s testimony; and (3) the statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” 

State v. Michael C. Christofferson, 2012AP571-CR, District 3, 10/30/12

court of appeals decision (1-judge, ineligible for publication); case activity

The officer didn’t develop probable cause (for OWI arrest; Christofferson was getting out of his car when the officer first saw him) until after illegal entry of the attached garage, therefore the ensuing arrest was unlawful.

¶10      Under the Fourth Amendment, police are prohibited from making a warrantless and nonconsensual entry into a suspect’s home absent probable cause and exigent circumstances. 

court of appeals decision (1-judge, ineligible for publication); case activity

State v. Andrew Wheaton, 2012AP173-CR

Reasonable Suspicion – OWI

Presence of the following factors establish reasonable suspicion to stop Wheaton for impaired driving:

¶23      The State points to the following as factors that produced an objectively reasonable suspicion of impaired driving at the time of the stop:  (1) Wheaton was driving at 3:05 a.m.,

State v. Randall Lee Sugden, 2012AP408-CR, District 4, 10/15/12

court of appeals decision (1-judge, ineligible for publication); case activity

Arrest in Richland County by a Sauk County deputy sheriff was justified under the fresh pursuit doctrine, § 175.40(2). State v. Haynes, 2001 WI App 266, 248 Wis. 2d 724, 638 N.W.2d 82, discussed and applied:

¶12      Applying Haynes to the facts of this case,

State v. Jan P. Hogan, 2012AP966-CR, District 4, 10/25/12

court of appeals decision (1-judge, ineligible for publication); case activity

Reasonable suspicion supported stop of car displaying “dealer imitation” plate (i.e., failing to display permanent or temporary plate in violation of § 341.04(1)). State v. Griffin, 183 Wis. 2d 327, 333, 515 N.W.2d 535 (Ct. App. 1994) (OK to stop car with “license applied for”

State v. Robert J. Jacobson, 2011AP581, District 2/3, 10/24/12

court of appeals decision (not recommended for publication); case activity; prior history: 2003AP2023-CR (direct appeal), 2005AP1928 (Knight petition)

Jacobson was convicted after jury trial on three counts of attempted homicide. He undertook an unsuccessful direct appeal, followed by a “Knight” habeas petition (the latter arguing that appellate counsel was ineffective in certain respects).

State v. Terry E. Nelson, 2012AP1418-CR, District 3, 10/23/12

court of appeals decision (1-judge, ineligible for publication); case activity

Reasonable suspicion supported stop of vehicle pulling out of driveway of house from which, shortly before, someone had called 911 but then hung up. United States v. Cohen, 481 F.3d 896 (6th Cir. 2007) (“the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot requires us to give the 911 hang-up call little weight in evaluating the totality of the circumstances”),