On Point blog, page 59 of 266
IAC claim based on failure to ask for theory of defense jury instruction rejected due to absence of proposed instruction
State v. Michael J. Foster, 2020AP2149-CR, District 4, 7/29/21 (not recommended for publication); case activity (including briefs)
A defendant claiming that trial counsel was ineffective for failing to ask for a theory of defense jury instruction must propose the language the instruction should have included and establish it is a correct statement of the law. Absent such a proposed instruction, the ineffective claim will fail.
Rookie cop’s mistake in reading results of registration check didn’t invalidate stop given other facts showing reasonable suspicion
State v. Anthony Francen Harris, 2019AP1908-CR, District 3, 7/30/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Police stopped the car Harris was driving in part because Skenandore, an officer-in-training, misread the data on his in-squad computer screen and wrongly concluded that the car’s owner didn’t have a valid license. (¶¶2-3, 5-7). His mistake doesn’t matter because the officer’s other observations justified the stop.
Conspiracy and solicitation charges weren’t multiplicitous, sentencing judge didn’t erroneously exercise sentencing discretion
State v. Lisa Rena Lantz, 2020AP742-CR, District 3, 7/27/21 (not recommended for publication); case activity (including briefs)
Lantz was convicted of conspiring to deliver methamphetamine between September 2015 and March 2016 and of soliciting the delivery of methamphetamine in February and March 2016. The court of appeals rejects Lantz’s argument that the charges are multiplicitous. It also rejects her challenge to her sentences.
Ch. 51 respondent had sufficient notice of standard of dangerousness; and the evidence was sufficient to dangerousness
Trempealeau County v. B.K., 2020AP1166, District 3, 7/27/21 (one-judge decision; ineligible for publication); case activity
B.K. (“Brian”) argues he was denied procedural due process because he was not given particularized notice of which standard of dangerousness the County intended to prove at the final commitment hearing. He also contends the evidence presented at the hearing was insufficient to prove he was dangerous. The court of appeals rejects with both claims.
Defense win: Evidence at recommitment hearings was insufficient to prove dangerousness
Rusk County v. A.A., 2019AP839 & 2020AP1580, District 3, 7/20/21 (not recommended for publication); case activity (2019AP839; 2020AP1580)
A.A. appeals two recommitment orders, raising multiple constitutional issues as to both and challenging the sufficiency of the evidence of dangerousness as to one of the cases and the admission of hearsay evidence regarding the other. The court of appeals acknowledges that A.A.’s constitutional claims raise “important” and “thorny” issues about recommitment petition pleading requirements and the constitutionality of recommitment proceedings, but it it resolves both cases on the evidentiary issues. (¶¶15, 31-32).
Consent to voluntary TPR was valid
C.W. v. M.M., 2021AP330 & 2021AP331, District 3, 7/21/21 (one-judge decision; ineligible for publication); case activity
M.M.’s consent to voluntary termination of parental rights was valid and can’t be withdrawn.
Defense win: Disorderly conduct charges precluded by First Amendment
State v. Aaron Matthew Oleston, 2020AP952-CR, District 4, 7/15/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Olseston was charged with five counts of disorderly conduct for “hurling profanities and personal insults” (¶14) at Janesville police officers as they came and left the police station, as well as filming some of the encounters. Three of the five counts can’t be prosecuted because Oleston’s conduct was protected by the First Amendment; the other two can be, because they went beyond protected speech.
Court didn’t rely on inaccurate info at sentencing and wasn’t biased
State v. Alexandrea C.E. Throndson, 2020AP1081-CR, District 4, 7/15/21 (not recommended for publication); case activity (including briefs)
Throndson raises two due process challenges to her sentencing: that the judge relied on inaccurate information and was objectively based. The court of appeals rejects both.
Evidence presented at commitment hearing sufficient to prove dangerousness
Outagamie County DHHS v. M.D.H., 2020AP86, District 3, 7/13/21 (one-judge decision; ineligible for publication); case activity
The evidence at M.D.H.’s final commitment hearing proved he was dangerous under § 51.20(1)(a)2.d.
Defense win: Continuing denial of physical placement ground unconstitutional as applied in case involving indigent parent
B.W. v. S.H., 2021AP43 & 2021AP44, District 3, 6/29/21 (one-judge decision; ineligible for publication); case activity
Under the facts of this case, terminating S.H.’s parental rights on continuing denial of physical placement grounds under § 48.415(4) violated his right to substantive due process because his indigency precluded him for seeking changes in the physical placement order.