On Point blog, page 71 of 266
Lawyer’s temporary license suspension, late review of discovery didn’t invalidate TPR orders
State v. D.S., 2019AP2230 through 2019AP2233, District 1, 8/25/30 (one-judge decision; ineligible for publication); case activity
D.S. challenges the orders terminating her parental rights to her children on the ground, first because her lawyer was unable to appear and represent her at a pretrial hearing because his law license was temporarily suspended, second because trial counsel didn’t obtain 400 pages of discovery until the day before the dispositional hearing. Her challenges are rejected.
Defense win! COA affirms suppression due to State’s failure to refute the basis for the circuit court’s ruling
State v. Catherine Cuskey Large, 2019AP1966-CR, 8/13/20, District 4 (1-judge opinion, ineligible for publication; case activity (including briefs)
The court of appeals correctly affirmed the circuit court’s decision to suppress OWI evidence in this case, where an officer admitted that the New Glarus Police Department’s “protocol” was to administer PBTs on motorists whether they had probable cause for OWI or not. But court of appeals did so by taking a heavy-handed approach to waiver, a rule of administration that appellate courts have the discretion to apply or not.
COA: Chapter 51 appellant’s initial brief must anticipate and refute mootness challenge
Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity
Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement. Hopefully, R.J. will move for reconsideration or petition for review.
Court of Appeals on enhancing unclassified felony sentences
State v. Tory J. Agnew, 2019AP1785-CR, District 4, 7/30/20 (not recommended for publication); case activity (including briefs)
The court of appeals affirms the structure of a bifurcated sentence for an unclassified felony to which a sentence enhancer applied, even though the sentence imposed runs afoul of the statutes and prior case law.
Read-in images were “associated” with child porn conviction for surcharge purposes
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)
Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.
COA: officer had reasonable suspicion of OWI for stop
State v. Christopher J. Vaaler, 2019AP2174, 8/6/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
An officer pulled Vaaler over in the very early morning for not having his headlights on. Per the court of appeals, Vaaler’s unusual manner of speech, the odor of intoxicants, and the fact of an open beer next to him were enough for the officer to conduct the OWI investigation that ultimately led to Vaaler’s arrest and conviction:
COA affirms denial of plea withdrawal though circuit court applied the wrong standard
State v. Brian Anthony Taylor, 2019AP1770-CR, District 1, 7/28/20 (not recommended for publication); case activity (including briefs)
What a frustrating decision. Taylor filed a pre-sentencing motion to withdraw his plea for repeated sexual assault of a child, but the circuit court denied it applying the more stringent post-sentencing plea withdrawal standard. “No problem,” says the court of appeals, “we’ll apply the correct standard for you and affirm.”
No error in entering default judgment in TPR based on parent’s conduct
State v. L.C., 2020AP796, District 1, 7/28/20 (one-judge decision; ineligible for publication); case activity
Whether to grant a default judgment in a TPR proceeding as a sanction for a parent’s egregious conduct is left to the circuit court’s discretion, and the circuit court properly exercised its discretion in defaulting L.C.
Defense win! Judge’s statements during trial showed objective bias against defendant
State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs)
Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged the case. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline for filing a response brief.
COA affirms verdict finding violation of harassment injunction and stringent probation terms
State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)
In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared.