On Point blog, page 244 of 262
OWI – Enhancer – Collateral Attack
State v. George McGee, 2010AP3040-CR, District 3, 4/26/11
court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity
McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior, he failed to show that his waiver of counsel was invalid.
No specific diagnosis, but evidence sufficient to support recommitment and involuntary medication
Brown County v. Quinn M., 2010AP3162, District 3, 4/26/11
court of appeals decision (1-judge, not for publication); for Quinn M.: Chandra N. Harvey, SPD, Madison Appellate; case activity
Evidence held sufficient to support extension of ch. 51 commitment upheld. 1. Mental illness. Expert testified that she was certain Quinn had a mental illness, though given his history of drug and alcohol use she could not provide a specific diagnosis with certainty.
Plea Bargain – Breach by Defendant
State v. Christian R. Colon, 2010AP839-CR, District 1, 4/19/11
court of appeals decision (not recommended for publication); for Colon: Amelia L. Bizzaro; case activity
Colon’s refusal to testify against codefendant Rivera constituted a substantial and material breach of his plea bargain, such that the State was freed from restrictions on its allocution, ¶¶9-16.
The sheriff placed Colon in a cell with Rivera the night before Colon was to testify,
3rd-Degree Sexual Assault, § 940.225(3) – Elements; Prior Inconsistent Statement; Sufficiency of Evidence
State v. Dennis J. Thornton, 2009AP3074-CR, District 2, 4/13/11
court of appeals decision (not recommended for publication); for Thornton: Angela C. Kachelski; case activity
Scienter is not an element of § 940.225(3). State v. Lederer, 99 Wis. 2d 430, 433, 299 N.W.2d 457 (Ct. App. 1980) (statute requires proof of victim’s nonconsent – in contradistinction, presumably, of defendant’s knowledge of lack of consent –
Implied Consent Law, § 343.305(5)(a)
State v. Joe R. Hechimovich, 2010AP2897-CR, District 4, 4/7/11
court of appeals decision (1-judge, not for publication); for Hechimovich: Corey C. Chirafisi; case activity
Compliance with implied consent law found. Although Hechimovich initially requested a breath test, after his blood was drawn at the hospital, the deputy “gave ample opportunity” during a 10-minute period for Hechimovich to renew the request for breath test. The deputy “conclud(ed) that when Hechimovich did not bring it up following his blood test,
Complaint – Sufficiency; Standard of Review – Transcripts not in Record
State v. Michael L. Gengler, 2010AP1999, District 2, 4/6/11
court of appeals (1-judge, not for publication); pro se; case activity
¶6 The trial court determined that the complaint and the amended complaint were proper, stating,
The complaint was duly sworn on oath. The complaint was signed and filed by an assistant district attorney as prescribed by WIS. STAT. § 968.02(1). The complaint alleges multiple violations of WIS.
Reasonable Suspicion – Field Sobriety Testing
State v. Rafael Labedzki, 2010AP2501-CR, District 2, 4/6/11
court of appeals decision (1-judge, not for publication); for Labedzki: Walter Arthur, Piel, Jr.; case activity
Reasonable suspicion for sobriety testing upheld, where officer had basis for concluding Labedzki was driving while intoxicated after an unchallenged stop for speeding. In brief: “Given that the trooper observed an alcoholic smell coming from Labedzki’s vehicle, a passenger who appeared drunk, bloodshot and glassy eyes on Labedzki,
Traffic Stop – Mistake of Fact
County of Sheboygan v. Jeffrey L. Bubolz, 2010AP2997, District 2, 4/6/11
court of appeals decision (1-judge, not for publication); for Bubolz: Casey J. Hoff; case activity
Ignoring a warning sign that a road is closed except to local traffic creates reasonable suspicion for a traffic stop, even though the sign was an “unofficial” one put up by the contractor.
¶11 Failure to adhere to official traffic signs is a violation of WIS.
Right to Present Defense – Hearsay Testimony; “Shiffra” Disclosure; Judicial Bias
State v. Bryan Peter Leather, 2010AP354-CR, District 1, 4/5/11
court of appeals decision (not recommended for publication); for Leather: Rex Anderegg; case activity
Leather argues he was entitled to call the prosecutor as a witness to testify about the complainant’s hearsay statements to her. The 6th amendment right to present a defense (confrontation and compulsory process) isn’t absolute and in particular doesn’t extend to irrelevant evidence. The offer of proof in support of admissibility shows that the complainant’s statements to the prosecutor weren’t inconsistent with her testimony,
Reasonable Suspicion – OWI Stop; Guilty Plea Waiver Rule – Suppression Rule; Briefing Rules
City of West Allis v. Susan Schneidler, 2010AP2531, District 1, 4/5/11
court of appeals decision (1-judge, not for publication); for Schneidler: Thomas C. Simon; case activity
Tip from an identified citizen informant – that she had seen Schneidler drinking alcohol before driving off – supported stop of Schneidler’s car, without requiring independent corroboration.
¶18 In short, Parr was a reliable witness who told police that she personally observed Schneidler drink alcohol and then drive and who made herself available to the police for questioning.