On Point: 11. Defense Wins

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State v. Charles V. Matalonis, 2014AP108-CR, District 2/4, 12/23/14 (not recommended for publication), petition for review granted 4/17/15; case activity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

State v. Ashley L. Eirich, 2014AP1901-CR, District 2, 11/26/14 (1-judge decision; ineligible for publication); case activity

Saying that “[t]raining and experience do not turn police officers into drug-detection canines,” the court of appeals holds that probable cause to search a vehicle based on the odor of raw marijuana did not extend to a search of the bill compartment of the driver’s wallet.

State v. Michael C. Hess, 2014AP268-CR, District 3, 11/11/14 (not recommended for publication); case activity

While the trial evidence was sufficient to support the jury’s verdict that Hess possessed methamphetamine, Hess is entitled to a new trial in the interest of justice because the verdict may have been influenced by evidence offered to proved drugged-driving charges that were dismissed during trial.

State v. Patrick J. Lynch, 2015 WI App 2, petition for review granted 3/16/15, affirmed by a divided court, 2016 WI 66; case activity

Lynch was entitled to an in camera review of the complainant’s treatment records because there is a reasonable likelihood the records will reveal the complainant exhibits ongoing symptoms associated with PTSD that affect her ability to recall and describe pertinent events, and that she failed to report Lynch’s alleged sexual abuse of her to treatment providers, at least as a child.

State v. Jeremiah R. Popp & Christopher A. Thomas, 2014 WI App 100; case activity: Popp; Thomas

The search warrant for the home shared by Popp and Thomas was invalid because the primary basis for the warrant was derived from observations made by police when they trespassed on the defendants’ property and peered into their windows.

State v. Benjamin P. Lind, 2014AP749-CR, District 3, 9/30/14 (1-judge; ineligible for publication); case activity

Officer’s observation of an unfamiliar vehicle entering the driveway of a home of a local police officer at 1:36 a.m. did not provide reasonable suspicion to conduct an investigatory stop of the vehicle.