On Point: 9. Crimes

on review of unpublished court of appeals decision; for Gracia: Tracey A. Wood; case activity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court of appeals decision (1-judge, not for publication); for Schwandt: Erik C. Johnson; case activity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court of appeals decision (1-judge, not for publication); for Hyzy: Jefren E. Olsen, SPD, Madison Appellate; case activity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court of appeals decision (not recommended for publication); for Lor: Benjamin F. Gallagher; case activity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,

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,

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). 

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,

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.