On Point: C. Unpublished Opinions

State v. Antonio L. Simmons, 2018AP591-CR, District 1, 7/21/20 (not recommended for publication); case activity (including briefs)

Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting.

State v. Michael Thomas Martell, 2019AP927-CR, District 3, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer located and started following Martell’s SUV after getting dispatchers relayed a tip describing a vehicle driving erratically. What the officer saw provided reasonable suspicion for a traffic stop.

State v. Joseph K. Edwards, 2019AP2138-CR, District 1, 7/21/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Edwards was charged with disorderly conduct with use of a dangerous weapon for “creepy, stalker-like behavior.” (¶6). The court of appeals rejects his complaint that the jury wasn’t instructed on the definition of “true threat” under State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762.

State v. M.A., 2019AP1089, 7/14/20, District 1 (one-judge decision; ineligible for publication); case activity

M.A.’s son J.A. was the subject of several delinquency petitions; each was converted to a JIPS proceeding because J.A. was not competent. See Wis. Stat. § 938.13(14). Eventually, M.A. filed a CHIPS petition in an apparent attempt to alter the constellation of services available to J.A. The state fought the petition and lost, and continued its fight on appeal. Per the court, though the state alleges five different errors, they all generally boil down to the same argument–that M.A. didn’t identify any particular services a CHIPS finding would provide that were not already available to her. The court rejects all five flavors of the state’s complaint and affirms the circuit court’s grant of the petition.

State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)

LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.

State v. Samuel L. Nichols, Jr., 2019AP802-CR, District 4, 7/16/20 (not recommended for publication); case activity (including briefs)

Nichols was charged with capturing images of nudity without consent and sexual assault. He argues the police didn’t have probable cause to seize his cell phone and therefore the images they found on it must be suppressed. He also asserts other-acts evidence was erroneously admitted at his trial. The court of appeals rejects both claims.

Fond du Lac County v. S.N.W., 2020AP274-FT, District 2, 7/15/20 (one-judge decision; ineligible for publication), petition  for review granted 11/19/20; case activity

The testimony of the county’s expert provided sufficient evidence of dangerousness under § 51.20(1)(a)2.b. and (1)(am).

Racine County HSD v. S.M.F., 2019AP2346 & 2019AP2347, District 2, 7/15/20 (one-judge decision; ineligible for publication); case activity

S.M.F.’s challenges the order terminating her parental rights, alleging trial counsel was ineffective and that the circuit court should have granted her mistrial motion. The court of appeals affirms.

State v. Brandon Daniel Mulvenna, 201AP2341-CR, 7/9/20, District 4 , (1-judge opinion, ineligible for publication); case activity (including briefs)

Mulvenna wasn’t operating his motorcycle when an officer, responding to a call, arrived to find him trying to lift it while it was facing south on a northbound only roadway. Mulvenna had bloodshot eyes and slurred speech and smelled of alcohol. He refused field sobriety tests, so the officer cuffed him and placed him in the back of his squad car. The sole issue is whether the officer had probable cause for the arrest. The court of appeals answered “yes,” and noted some appellate rules violations.

State v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.