On Point blog, page 42 of 87
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court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity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,
§ 974.06 Motion – Custody Requirement; OWI – Enhancer
State v. David D. Austin, 2011AP1042, District 1, 4/10/12
court of appeals decision (1-judge, not for publication); pro se; case activity
Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:
¶12 Austin submits that the wording of Wis.
OWI – Repeater – Collateral Attack
State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12
court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity
The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:
¶2 A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.
OWI – Operating in Parking Lot: “Held Out to the Public for Use,” § 346.61
State v. Heidi L. Fleischmann, 2011AP2558-CR, District 3, 3/20/12
court of appeals decision (1-judge, not for publication); for Fleischmann: Sarvan Singh; case activity
The State satisfied its burden of proving that Fleischmann operation of a motor vehicle, in a parking lot adjacent to an empty business building, was on “premises held out to the public for use of their motor vehicles,” § 346.61.
¶8 Whether a premises is held out to the public depends on the owner’s intent.
OWI – Operating on Public “Premises” – Frozen Lake
State v. Todd M. Anderson, 2011AP1499-CR, District 2, 3/14/12
court of appeals decision (1-judge, not for publication); for Anderson: pro se; case activity
Frozen Lake Winnebago is a public “premises” within § 346.61, therefore supports prosecution for operating a vehicle on the lake while intoxicated. City of Kenosha v. Phillips, 142 Wis. 2d 549, 419 N.W.2d 236 (1988), discussed and applied.
¶9 Unlike the Phillips court,