On Point: 11. Defense Wins

State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket

Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.

City of Stevens Point v. Jared T. Lowery, 2014AP742, 2/5/15; District 4 (1-judge opinion; ineligible for publication); click here for docket and briefs

It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.

State v. Benjamin J. Strohman, 2014AP1265-CR, District 3, 2/3/15 (1-judge decision; ineligible for prosecution); case activity (including briefs)

Rejecting the state’s arguments that the statute of limitation had been tolled, the court of appeals holds the state could not re-charge Strohman for an OWI offense that was improperly treated as a first offense because the time limit for charging the offense had expired.

St. Croix County DHHS v. Michael D. & Juanita A., 2014AP2431, District 3, 1/16/15 (1-judge decision; ineligible for publication), petition for review granted 4/16/15, reversed, 2016 WI 35; case activity

The court of appeals holds that the notice requirements of §§ 48.415(2)(a)1. and 48.356(2) were not satisfied because the last order concerning out-of-home placement of Juanita’s child did not include the written notice of the applicable grounds for termination or the conditions for Matthew’s return. The County therefore failed to meet its burden of proof on the continuing CHIPS ground under § 48.415(2)(a)1. and the termination order is vacated and the TPR petition dismissed.

State v. Lance F., 2014AP1881-FT, 12/23/14, District 2 (1-judge opinion; ineligible for publication); case activity

A circuit court lacks authority to order a juvenile (who had been found delinquent for battery, disorderly conduct and physical abuse of a child) to make restitution of the victim’s missing property, where he was never charged with theft of the property, he never admitted to stealing the property, and the state did not read in charges relating to theft of the property. The court explained:

Winnebago County DHS v. Ashley A.O., 2014AP2404, 12/23/14, District 2 (1-judge opinion, ineligible for publication); case activity

A circuit court may not enter a summary judgment finding a parent unfit during the grounds phases of a TPR proceeding when that finding is based on an order denying the parent physical placement due to his (or her) incarceration.

State v. Charles V. Matalonis, 2014AP108-CR, District 2/4, 12/23/14 (not recommended for publication), petition for review granted 4/17/15; case activity

The warrantless search of Matalonis’s home, which led to the discovery of marijuana, was not justified under the community caretaker exception to the warrant requirement because there was no reasonable basis to believe there was an injured person in the home.

State v. Cody J. Nolan, 2014AP1359-CR, District 3/4, 12/23/14 (1-judge decision; ineligible for publication); case activity

The police did not have reasonable suspicion to believe the red car Nolan was driving had been involved in a reportable accident and was leaving the scene or was assisting others in leaving the scene of a reportable accident in violation of § 346.70(1) or (1m)(b), as there was no evidence supporting a reasonable belief the alleged accident involved sufficient property damage to make it reportable under the statute.

State v. Tahj E. Kitt, 2015 WI App 9; case activity

“When a convicted offender has put sentence credit at issue, the court—not the clerk—must make and explain the decision on how much sentence credit is to be awarded.” (¶2).

State v. Myron C. Dillard, 2014 WI 123, 11/26/14, affirming a published court of appeals decision, 2013 WI App 108; majority opinion by Chief Justice Abrahamson; case activity

Dillard accepted a plea bargain under which the state dropped a persistent repeater allegation, which carried a mandatory sentence of life without the possibility of release. But Dillard was never really subject to the persistent repeater law. When he discovered this fact after he was sentenced, he moved to withdraw his plea on the ground his decision to accept the plea bargain was based on his mistaken belief—one shared by the prosecutor, his lawyer, and the court—that he was facing a mandatory life sentence if he was convicted after a trial. The supreme court holds he is entitled to plea withdrawal because his plea was not knowing and voluntary and because his trial lawyer was ineffective for failing to discover the persistent repeater law never applied to Dillard.