On Point blog, page 41 of 87
Warrantless Blood Draw – Medical Basis for Objection
State v. James Ralph Whitwell, 2011AP1342-CR, District 3/4, 5/24/12
court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity
Whitwell challenges a warrantless blood draw, on related grounds: he objected at the time, informing officials that he suffered from a medical condition that made the draw dangerous absent certain precautionary measures; this objection to the draw was objectively reasonable.
State v. Juan G. Gracia, 2011AP813-CR, petition for review granted 5/14/12
on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity
Warrantless Entry – Community Caretaker / OWI Enhancer – Collateral Attack
Issues (Composed by On Point):
Whether the community caretaker doctrine supported entry into Gracia’s bedroom after the police linked him to a serious traffic accident.
Whether Gracia’s waiver of counsel in a prior OWI conviction used as a penalty enhancer was valid,
OWI Enhancer – Collateral Attack – Prima Facie Showing
State v. Casey D. Schwandt, 2011AP2301-CR, District 2, 5/16/12
court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity
Schwandt made a prima facie showing that he did not validly waive counsel in a 1997 OWI conviction used as a penalty enhancer.
General Principles.
¶5 A defendant may collaterally attack a prior conviction on the ground that his or her constitutional right to counsel was violated because he or she did not knowingly,
OWI, § 346.63(2)(a)1 – Operating on “Public” Roadway, Gated Community
State v. Michael F. Hyzy, 2011AP2503-CR, District 2, 5/2/12
court of appeals decision (1-judge, not for publication); for Hyzy: Jefren E. Olsen, SPD, Madison Appellate; case activity
Evidence held sufficient to uphold OWI guilty verdict, against argument of failure of proof that roadways of gated community were “held out to the public for use of their motor vehicles.”
¶11 Construing this evidence in the conviction’s favor,
Effective assistance of counsel; Sexual assault of child ; Sentencing – discretion
State v. Thaying Lor, 2011AP2019-CR, District 1, 5/1/12
court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity
Effective Assistance of Counsel
Counsel did not provide ineffective representation in the following respects:
- Failure to timely file motion seeking admission of complainant’s prior untruthful allegation of sexual assault. However, Lor did not provide, including in his postconviction motion,
State v. Leilani E. Neumann, 2011AP1105-CR / State v. Dale R. Neumann, 2011AP1044-CR, District 3, 5/1/12
court of appeals certification, review granted, 6/13/12; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity
Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment
Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment,
State v. Courtney C. Beamon, 2011 WI App 131, rev. granted 4/25/12
court of appeals decision; for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; prior post
Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error
Issues (from Beamon’s Petition for Review):
Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?
In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or,
Intentionally Mistreating / Shooting Animal, Resulting in Death, §§ 951.02 951.09 and 951.18(1): Intent not Element – Pellet Gun Is Weapon
State v. Shawn M. Klingelhoets, 2012 WI App 55 (recommended for publication); for Klingelhoets: Robert R. Henak; case activity
Intentionally Mistreating Animal, Resulting in Death, §§ 951.02 and 951.18(1) – Intent Element
Intentionally mistreating an animal, resulting in the animal’s death, contrary to Wis. Stat. §§ 951.02 and 951.18(1), doesn’t require intent to kill:
¶17 In sum, the plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated,
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional; Constitutional, as Applied; Defense of Coercion, § 939.46(1)
State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12
court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional
The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35).
Felon-in-Possession, § 941.29: Constitutionality, Second Amendment
State v. Thomas M. Pocian, 2012 WI App 58 (recommended for publication); for Pocian: Martin E. Kohler, Craig S. Powell, Geoffrey R. Misfeldt; case activity
¶2 In 1986, Thomas M. Pocian was convicted of writing forged checks, a felony. Twenty-four years later, Pocian was prosecuted under Wis. Stat. § 941.29, which prohibits a felon from possessing a firearm. Relying on Heller and McDonald,