On Point blog, page 98 of 263
Sentencing court assures defendant: “You can ask for expunction later.” Court of appeals says: “No, you can’t”
State v. Kole R. Eichinger, 2017AP1845-1847-CR, 10/16/18, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)
This case highlights an expunction issue that SCOW still needs to resolve. Prior to 2014, circuit courts often delayed deciding expunction until they saw how a defendant did on probation. State v. Matasek, 2014 27, 353 Wis. 2d 601, 846 N.W.2d 811 changed that practice. It clarified that courts must decide whether to order expunction at the time of sentencing. What about all of the defendants who were expressly told at sentencing that they could apply for expunction after they completed probation?
Court of Appeals upholds TPR
Rock County DHS v. L.H., 2018AP1308, 10/11/18, District 4 (one-judge decision; ineligible for publication); case activity
L.H. challenges the circuit court’s finding that the county department established continuing-CHIPS grounds for termination of her parental rights to her daughter. She says the county can’t have met its burden to show a “substantial likelihood” she wouldn’t meet the conditions of return within nine months, Wis. Stat. § 48.415(2)(a)3. (2015-16) (recently amended), because the court said “I don’t know” whether she’d meet the conditions.
Counsel not ineffective for failing to object to vouching at trial and impermissible factors at sentencing
State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)
The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.
Challenges re right to self-representation and domestic abuse assessment fail on appeal
State v. Sandra D. Solomon, 2018AP298-CR, 9/25/18, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Solomon sought plea withdrawal arguing that the circuit court had denied her request to represent herself and insisted on proceeding with the scheduled trial date, so her newly-retained lawyer was not prepared to defend her. The court of appeals held that her invocation of this right was not clear and unequivocal. It also held that the domestic abuse assessment clearly applied to this case.
Detective’s narrative of events shown on surveillance videos properly admitted under lay opinion rule
State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)
Applying State v. Small, 2013 WI App 117, 351 Wis. 2d 46, 839 N.W.2d 160, and the lay opinion rule, § 907.01, the circuit court properly allowed a detective to narrate the events recorded on multiple surveillance cameras based on his having viewed the recordings “many times.”
Ch. 51 commitment extension and medication order upheld
Winnebago County v. B.C., 2018AP846-FT, District 2, 9/5/18 (one-judge decision; ineligible for publication); case activity
B.C. challenges the sufficiency of the evidence to extend his commitment and involuntarily medicate him. His challenge fails.
Plea to TPR petition valid despite prior finding of incompetency
State v. R.D.S., 2017AP1771, District 1, 9/18/18 (one-judge decision; ineligible for publication); case activity
R.D.S. moved to withdraw her no-contest plea to a TPR petition, saying her plea was not knowing, intelligent, and voluntary because of the cognitive disabilities for which she was found to be incompetent during the underlying CHIPS proceedings and a criminal case involving charges of abuse of her child. The circuit court denied the motion after an evidentiary hearing, and court of appeals affirms.
Denial of evidentiary hearing in remanded TPR wasn’t erroneous
State v. B.D.S., 2017AP1770, District 1, 8/27/18 (one-judge decision; ineligible for publication); case activity
B.D.S. filed a motion for postdisposition relief seeking to withdraw his no-contest plea to a TPR petition, alleging there was an issue about his competency to understand the proceedings. (¶9). The court of appeals rejects his claim that the circuit court was required to hold an evidentiary hearing on the motion.
Challenges to juvenile’s life sentence rejected
State v. Jevon Dion Jackson, 2017AP712, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)
Citing the recent U.S. Supreme Court decisions holding that the Eighth Amendment limits the imposition of life sentences on juveniles, Jackson argues he is entitled to a new sentencing hearing or sentence modification. The court of appeals concludes Jackson’s sentence is constitutional.
Video seems to show white robber in state’s other-acts evidence; COA, over dissent, upholds conviction of black defendant
State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)
The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.