On Point blog, page 254 of 264
TPR – Knowing Admission to Grounds, Ineffective Assistance
State v. Kenneth E., 2010AP1520, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate
(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs. Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice,
TPR – Exercise of Discretion
State v. LaDonna E., 2010AP1733, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for LaDonna E.: Jane S. Earle
Termination of parental rights upheld. Mother (LaDonna E.), after defaulting on grounds phase, challenged termination on basis that child’s aunt, who had custody and wanted to adopt child, should be appointed guardian instead.
¶9 The circuit court noted that “Kenny will be adopted.” See Wis.
Warrantless Blood Draw – Driving under Influence of Drugs
State v. Travis J. Malinowski, 2010AP1084-CR, District 3, 11/30/10
court of appeals decision (1-judge, not for publication); for Malinowski: Chad A. Lanning; Malinowski BiC; State Resp.; Reply
Exigent-circumstances doctrine supports warrantless blood draw of person arrested for driving under the influence of drugs, no less than under the influence of alcohol, State v. Bohling, 173 Wis.
§ 944.20(1)(a), Lewd & Lascivious
State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication)
The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another.
¶9 The language at issue is unambiguous as applied to the facts in this case. The subsection prohibits “an indecent act of sexual gratification with another with knowledge that they are in the presence of others.” WIS.
Notice of Mandatory Minimum
State v. Harry Thompson, 2009AP1505-CR, District 4, 11/24/10, reversed, 2012 WI 90
court of appeals decision (3-judge, not recommended for publication), reversed 2012 WI 90; for Thompson: J.P. La Chapelle; State BiC; Thompson Resp.; Reply; State Supp.; Thompson Supp.
Failure of the charging document to provide Thompson with notice that he faced a mandatory minimum confinement (25 years on each count) didn’t violate due process.
Reasonable Suspicion for PBT
County of Sauk v. Julio Leon, 2010AP1593, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Leon: Robert C. Raymond; Leon BiC; State Resp.; Reply
Odor of intoxicants insufficient, alone, to support administering PBT.
¶20 When an officer is not aware of bad driving, then other factors suggesting impairment must be more substantial. For example,
Reasonable Suspicion, Drug Use
State v. Joseph E. Jenamann, 2010AP1825-CR, District 4, 11/24/10
court of appeals decision (1-judge, not for publication); for Jenamann: Matthew Allen; State BiC; Jenamann Resp; Reply
Continuing detention, following routine traffic stop for loud muffler and after Jenamann passed sobriety tests, was unlawful:
¶12 The only suspicious factors suggesting drug activity were bloodshot, glassy eyes, shakiness, and a nervous suspect.
Sentencing – Inaccurate Information
State v. David Derrell Morgan, 2009AP3081-CR, District 1, 11/23/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Mary D. Scholle, SPD, Milwaukee Appellate; Morgan BiC; State Resp.; Reply
Claims that the sentencing court relied on inaccurate information with respect to Morgan’s employment history and family relationships rejected, on ground of failure to show reliance:
¶12 Morgan has not shown that the circuit court actually relied on the allegedly inaccurate information.
Sentencing – Right to be Sentenced by Judge Who Took Plea / Heard Evidence of Guilt
State v. Kacey G. Johnson, 2010AP1263-CR, District 1, 11/23/10
court of appeals decision (1-judge, not for publication); for Johnson: James B. Duquette; Johnson BiC; State Resp.; Reply
Johnson forfeited his claim of a right to be sentenced by the judge who took his guilty plea, by failing to object contemporaneously. This is not a matter requiring the defendant’s personal assent.
¶11 Fundamental fairness is a general due process concept.
Traffic Stop – Duration; Field Sobriety Testing – PBT
State v. Joshua L. McDonald, 2010AP1045-CR, District 4, 11/18/10
court of appeals decision (1-judge, not for publication); for McDonald: Tracey A. Wood; McDonald BiC; State Resp.; Reply
Traffic Stop – Duration
¶13 We conclude that the time it took for the deputy to ask McDonald whether he had been drinking that night and for McDonald to answer did not unreasonably prolong the stop.