On Point: 9. Crimes

Question Presented:

Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period — a fundamental due process question that is the subject of a well-developed circuit split.

Wisconsin State v. Tally Ann Rowan, 2012 WI 60, on certification review ; case activity

Extended Supervision Conditions – Suspicionless Searches 

A condition of extended supervision “that allows any law enforcement officer to search [Tally]’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion,” was tailored to the particular facts and thus neither overbroad nor unrelated to Tally’s rehabilitative needs.

State v. Daniel Lee Rueden, Jr., 2011AP001034-CR, District 4, 6/7/12

court of appeals decision (not recommended for publication); for Rueden: Eileen A. Hirsch, Kaitlin A. Lamb, SPD; case activity

Felon-in-possession, § 941.29, is not unconstitutional either facially or as applied in this instance; State v. Pocian, 2012 WI App 58, deemed controlling.

¶6        We need not discuss the specifics of Rueden’s facial and as-applied challenges because,

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court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity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. 

on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity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,

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court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity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,

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,

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,

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,

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,