On Point: C. Unpublished Opinions

Racine County DHS v. W.L.J., 2020AP197-198, October 14, 2020, District 2 (1-judge opinion, ineligible for publication); case activity

Good news for defense lawyers in TPR cases. The court of appeals means business. This is the third time in less than a year that it has reversed a termination of parental rights order due to a circuit court error on the question of whether a parent “abandoned” his or her child.

State v. Michael J. Pierquet, 2009AP2099-Cr, 10/14/20, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)

A jury convicted Pierquet of operating a motor vehicle with a Prohibited Alcohol Content. He argued that the circuit court erred in admitting the results of his blood test and in giving them prima facie effect because the State failed to prove that the analyst who performed the test possessed a valid permit for alcohol testing. The court of appeals disagreed because an employee of the State Lab of Hygiene testified that all of the analysts at the Lab hold a valid alcohol analysis issued by the state.

State v. C.A.A., 2020AP1194, District 1, 10/13/20 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate C.A.A.’s parental rights, the case manager handling the CHIPS case pertaining to C.A.A.’s child testified that, in her opinion, C.A.A. would not likely satisfy the conditions of return under the CHIPS order within the 9-month period prescribed by § 48.415(2)(a)3. (2015-16) (a requirement eliminated by 2017 Wis. Act 256). (¶6 & ¶9 n.3). The court of appeals holds this was admissible lay opinion testimony.

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

State v. Chanler Lee Guyton, 2019AP1409-CR, District 3, 10/6/20 (not recommended for publication); case activity (including briefs)

Guyton told a social worker for a county social services agency that she and four of her colleagues had violated his rights in a CHIPS proceeding regarding his son. He said he would deal with the matter “with my own hands” and things were “going to turn very tragic” because he would come to their office armed. (¶6). The court of appeals rejects his claim this was insufficient to prove the elements of witness intimidation under § 940.201(2)(a).

State v. Sarah J. Katula-Talle, 2019AP1622-CR, District 3, 10/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)

A police officer had contact with Katula-Talle while responding to a domestic disturbance call. The department’s standard procedure in those situations is to run a driver’s license and warrant check on everyone the officers have contact with. The check on Katula-Talle showed she was revoked for an OWI-related offense. Two weeks later the officer saw her driving and stopped her on suspicion she was operating after revocation. (¶¶3-5). Was the two-week-old check enough to justify the stop, or was it only enough to give the officer a hunch?

Portage County v. E.R.R., 2020AP870-FT, District 4, 10/1/20 (one-judge decision; ineligible for publication); case activity

As the supreme court recently emphasized, at a proceeding to extend a ch. 51 commitment, proving dangerousness under § 51.20(1)(am) requires evidence establishing that the person is likely to be dangerous under one of the specific standards in § 51.20(1)(a)2. if treatment is withdrawn. Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942 N.W.2d 277. There was not enough evidence in this case to prove E.R.R. was dangerous under one of those standards.

State v. Synika Antonio Kirk, 2019AP175, 9/22/20, District 3 (not recommended for publication); case activity (including briefs)

You know, those semis that carry like 6 or 10 cars. Kirk owned a 1989 Jaguar that was riding on such a vehicle along with several other cars. A Kansas trooper pulled the truck over and asked to inspect the driver’s paperwork. The trooper would testify that the driver’s logbook had an entry he found strange: a two-day stay in Reno, Nevada after the truck was loaded–a stop the trooper called “not normal.” He also didn’t buy the driver’s explanation that he had spent those two days trying to find tires for his truck.

State v. Raymond R. Barton, 2019AP1990, 9/24/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments.

State v. Jerry A. Leister, 2020AP365-CR, District 4, 9/24/20 (1-judge opinion, ineligible for publication); case activity

Leister, charged with intentional mistreatment of animals,  wanted a lawyer but had trouble retaining one.  After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion.