On Point: C. Unpublished Opinions

State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10

court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.

Appellate Procedure – Sanction

Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion.  Yet, as required by rule,

State v. Devon A. Sheriff, 2009AP3095-CR, District 1, 11/16/10 

court of appeals decision (3-judge, not recommended for publication); for Sheriff: Jeffrey W. Jensen; Sheriff BiC; State Resp.

Sheriff, convicted at jury trial of participating in drug sale, unsuccessfully appeals trial judge’s refusal to admit into evidence codefendant’s statements.

¶12      We conclude that the statements that Sheriff sought to admit were properly excluded because they were irrelevant.

State v. Jason W. Kucik, 2009AP933-CR, District 1, 11/16/10

court of appeals decision (3-judge, not recommended for publication); for Kucik: Thomas J. Nitschke; Resp. Br.; Reply; Kucik Supp. Br.; State’s Supp. Br.

Appellate Procedure – Affirmance on Different Theory than Posited Below

¶31      We agree with the State that it is appropriate for us to consider the alternate basis to affirm the trial court that the State raised for the first time at oral argument. 

State v. John J. Neff, 2010AP1092-CR, District 2, 11/10/10

court of appeals decision (1-judge, not for publication); for Neff: Dennis P. Coffey; BiC; Resp.; Reply

Report that intoxicated individual had urinated in public and was driving away held  sufficiently reliable to support stop:

¶12      We now turn to the anonymous tip in this case.  The tip was that two individuals were possibly intoxicated in the Sybaris parking lot,

State v. Robert J. Ruggles, 2010AP1587, District 2, 11/3/10

court of appeals decision (1-judge, not for publication); for Ruggles: Robert C. Raymond; BiC; Resp.

A driver doesn’t have a constitutional right to be informed that a blood draw could be performed without his consent.

¶9        It is well established that there is no constitutional right to refuse a request for a chemical test.  

State v. Paul Dwayne Westmoreland, 2009AP2288, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Brief

¶14     Escalona-Naranjo requires that a defendant raise all grounds for postconviction relief in his or her first postconviction motion or in the defendant’s direct appeal.  See id., 185 Wis. 2d at 185.  A defendant may not pursue claims in a subsequent appeal that could have been raised in an earlier postconviction motion or direct appeal unless the defendant provides a “‘sufficient reason’” for not raising the claims previously. 

State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Guilty Plea – Withdrawal – Presentence

The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.

The particular grounds asserted – no factual basis for plea;

State v. Jason C. Walker, 2010AP83-CR, District 3, 11/2/10

court of appeals decision (recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply

¶1       Jason Walker was sentenced after revocation of his probation.  The sentencing court considered probation violations that Walker denied committing.  Because of his denial, Walker argues the court could not consider the violations unless the State proved he committed them. 

State v. Lea B. Kolner, 2010AP1233-CR, District 3, 11/2/10

court of appeals decision (1-judge, not for publication); for Kolner: R. Michael Waterman; BiC; Resp.; Reply

Curative Instruction

Any impropriety in the prosecutor’s opening statement (alleged comment on right to silence) was presumptively cured by the trial court’s instruction to disregard the entire opening statement.

¶11      Not all errors warrant a mistrial,

State v. Andrew M. Obriecht, 2010AP1469, District 4, 10/28/10

court of appeals decision (1-judge, not for publication); pro se

Following earlier unsuccessful challenges to his plea-based conviction via direct appeal and habeas, Obriecht utilizes coram nobis as an attack mechanism. He argues that his plea wasn’t knowing, and that requiring a plea as a precondition to participation in the First Offender Program violated due process. The court rejects the arguments because they don’t relate to factual error unknown at the time,