On Point: C. Unpublished Opinions

State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)

Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.

State v. Lonnie P. Ayotte, Jr., 2018AP839-CR, 7/25/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Like Jessica Randall, Ayotte consented to a blood draw after his OWI arrest but then asserted his right to privacy in his blood and told authorities they couldn’t test his blood for alcohol without a warrant. As they did with Randall, the authorities tested the blood anyway. And like Randall,

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

City of Milwaukee v. David B. Munzinger, 2018AP2186, 7/23/2019, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Munzinger fought his OWI citation in the municipal court and lost; he filed an appeal to the circuit court pursuant to Wis. Stat. § 800.14. To do this, his counsel filed a form  in the circuit court captioned “Notice of Appeal” (probably this one, provided by the municipal court). He also emailed the city attorney alerting him to the appeal and apparently spoke to him about it. But, his email didn’t include a copy of the “Notice of Appeal” form. The city moved to dismiss and the circuit court granted the motion.

State v. Craig L. Miller, 2018AP2161-CR, 7/18/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Miller pled guilty to disorderly conduct as a domestic abuse incident and as a repeater. He appealed arguing that his plea was not knowing, intelligent and voluntary because of his schizophrenia diagnosis and the medication he was taking. The court of appeals ruled against him due to a lack of evidence.

State v. Denise R. Campbell, 2018AP1190, 7/16/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a state’s appeal of the suppression of evidence derived from the stopping of Denise Campbell’s vehicle. The arresting deputy testified to various unusual driving behaviors and, in the court of appeals’ view, the trial court credited that testimony but misapplied the law to the facts. The court of appeals accordingly reverses the grant of suppression.

Walworth County DHS v. S.S.K., 2019AP782, 7/17/19, District 2 (1-judge opinion, ineligible for publication); case activity

During the grounds phase of the Walworth County’s TPR case against S.S.K., she “admitted” the ground of continuing CHIPS; she didn’t plead “no contest.”  This distinction proved decisive to the court of appeals’ decision to affirm the termination of her parental rights to her daughter, A.S.L. 

State v. Kevin B. Hutchins, 2018AP1144-CR, 7/16/2019, District 1 (not recommended for publication); case activity (including briefs)

Hutchins had a jury trial for the alleged sexual assault, false imprisonment, and battery of the mother of his children. The judge permitted her to testify, over objection, that he had hit her on other, earlier occasions–the proffered purpose of this testimony being to show why she didn’t immediately go to the police after this incident (and thus, apparently, to defend the credibility of her story). The court of appeals affirms.

State v. Andreal Washington, 2018AP1254-CR, 7/9/19, District 1 (not recommended for publication); case activity (including briefs)

A jury acquitted Washington of the felony murder of Williams. Then the State charged him with 2nd degree reckless homicide. Washington moved to dismiss on double jeopardy grounds. The circuit court denied the motion, and the court of appeals here affirms.

State v. John E. Paul, 2018AP1496, 7/11/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Paul had three prior OWIs and was on trial for a fourth, plus the associated PAC charge. During voir dire, the prosecutor told the jury that

the other thing is the prohibited alcohol concentration in this particular case is .02. Now, many of you may have heard of the .08, but in this instance, the prohibited alcohol concentration is .02. Now, is there any person here who thinks it’s unfair that somebody could be prosecuted or convicted of the offense of operating a motor vehicle with a prohibited alcohol concentration of .02 percent or .02 grams per 210—I forgot, but per deciliter of the  defendant’s breath? So it’s a .02 standard. Is there any person here who thinks that would be unfair?