On Point blog, page 30 of 53
Trial counsel found ineffective; promised defendant would testify, told jury about defendant’s sordid past, failed to elicit impeachment evidence
State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)
Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.
Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation
State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)
In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.
“Statutes need to be complied with,” and failure to comply with § 55.10(2) deprived circuit court of competency to proceed
Sheboygan County v. Christopher A.G., 2014AP2489, District 2, 2/25/15 (one-judge decision; ineligible for publication); case activity
The circuit court erred in holding a due process hearing on Christopher’s protective placement without Christopher’s physical presence and without the guardian ad litem (GAL) waiving his attendance in writing prior to the hearing as required by § 55.10(2) and Jefferson County v. Joseph S., 2010 WI App 160, 330 Wis. 2d 737, 795 N.W.2d 450.
Court of appeals affirms suppression; sees one-shot-sized container exception to Gant
State v. Miranda K. Hinderman, 2014AP1787-CR, 2/12/15, District 4 (one-judge opinion; ineligible for publication); click here for briefs
Just because police had grounds to arrest Hinderman for OWI didn’t mean that they also had reason to believe that evidence relating to the OWI might be found in a 3″x3″ pouch inside her purse, inside her car, where they happened to find marijuana and drug paraphernalia.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket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.
Circuit court lacked subjected matter jurisdiction to hear OWI, first offense
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.
Statute of limitations barred re-prosecution of OWI that was improperly charged as a first offense
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.
TPR dismissed because final placement order lacked notice of conditions for return and grounds for termination
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.
Court of appeals reverses order for restitution of property that was unrelated to either a conviction or a read-in charge
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:
Court of appeals reverses “unfitness” finding in TPR case
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.