On Point: C. Unpublished Opinions

State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)

The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.

State v. William Lawrence Bonfiglio, 2019AP188-CR, District 4, 10/22/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Police immobilized Bonfiglio because they thought he was going to resist the blood draw authorized under the search warrant they had obtained. The court of appeals rejects Bonfiglio’s claims this constituted an unreasonable execution of the warrant.

State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)

Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.

Columbia County v. J.M.C., Jr., 2020AP1001, District 4, 10/22/20 (1-judge opinion, ineligible for publication); case activity

J.M.C. was taken to jail on possible criminal charges. Two days later, the County filed a Chapter 51 petition for his commitment.  Section 51.20(7) provides that the circuit court must hold a probable cause hearing within 72 hours of taking a person into custody under §51.20.  The circuit court dismissed the petition for violation of the 72-hour rule, and the County appealed arguing that the circuit court erred in determining what triggered 72-hour clock triggered.

Village of Lomira v. Phillip N. Benninghoff, 2020AP31, District 4, 10/15/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Benninghoff tries to raise a bevy of challenges to the implied consent law and to the revocation of his driving privileges for refusing a blood draw. His challenges are forfeited because he failed to file a timely request for a refusal hearing and, in any event, the arguments aren’t suitably developed or are foreclosed by State v. Levanduski, 2020 WI App 53.

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).