On Point: 11. Defense Wins

State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.

State v. Annika S. Christensen, 2022AP500, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Christensen was one of two occupants of a parked car after dark. A police truck approached, parked close behind her, and shined its takedown light into the car. At least one officer got out of the car and knocked on the window. In a carefully-reasoned, well-explained decision, the court of appeals affirms the circuit court’s holding that Christensen was seized at this moment, and that the police lacked reasonable suspicion for that seizure.

State v. James P. Killian, 2022 WI App 43; review granted 1/20/23; reversed, 2023 WI 52; case activity (including briefs)

The state provoked a mistrial in a case charging Killian with child sexual assault offenses against two complainants. The circuit court later dismissed the case due to the prosecutor’s misconduct. When the state recharged Killian with sexual offenses against the same complainants the circuit court dismissed the new case as a violation of double jeopardy. The court of appeals affirms.

State v. Jamie Lee Weigel, 2022 WI App 48; case activity (including briefs)

In Wisconsin criminal law, the word “sentence” is sometimes used generically to include probation; other times it’s used in a technical sense to refer only to imprisonment, and thus excludes probation. See, e.g., State v. Fearing, 2000 WI App 229, ¶6, 239 Wis. 2d 105, 619 N.W.2d 115. In this case the state attempts to defend its breach of a plea agreement by saying its agreement to cap its “sentence” recommendation referred to the technical meaning of “sentence,” and thus allowed it to also make a recommendation for consecutive probation. The court of appeals isn’t persuaded.

State v. Eric J. Debrow, 2021AP1732, 7/21/22, District 4 (not recommended for publication); petition for review granted, 12/15/22, reversed, 2023 WI 54; case activity (including briefs)

The court of appeals holds Debrow is entitled to a new trial because of the unfair prejudice caused by one witness’s testimony that would have led the jury to conclude Debrow had a prior criminal conviction that led the witness to be “on alert” when Debrow went into the bedroom of two children.

State ex rel. DeLorean Bryson v. Kevin Carr, 2022 WI App 34; case activity (including briefs)

A few months ago the court of appeals decided Ortiz v. Carr, holding (with a number of important caveats) that DOC may not take a greater percentage of an inmate’s wages for restitution than the circuit court has ordered–if the circuit court has ordered a specific percentage. Here, the court applies similar logic to obligations other than restitution. It holds that DOC has the authority to set a percentage rate for the crime lab surcharge and the DNA surcharge, but that the circuit court has the authority to set a different rate for collection of court fees. It does not decide who has authority over the victim-witness surcharge, because DOC did not appeal the circuit court’s determination of that question (which was that DOC has the authority to set the percentage, but that its new policy of taking 50 percent violates the administrative rules it earlier promulgated).

State v. M.S.H., 2022AP369, 6/1/2022, District 1 (one-judge decision; ineligible for publication); case activity

The circuit court found M.S.H. to be an unfit parent on summary judgment. Turning to the dispositional phase, the court granted the state’s request to conceal from M.S.H. the identity of the person who the state considered likely to adopt her child.

County of Milwaukee v. Roosevelt Cooper, Jr., 2021AP1224, 5/17/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Cooper wins a new trial because the trial court improperly amended the charge against him and denied him an opportunity to present evidence regarding the amended charge. Cooper was also denied the opportunity to cross-examine the testifying officer on both the original charge and the amended charge.

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

State v. A.P., 2022AP95-97, 4/26/22, District 1 (1-judge opinion, ineligble for publication); case activity

Seems like we went years without a defense win in a TPR appeal. Then–just like that–we get 4 citable defense wins in 9 months. See also this win, this win, and this win! At the disposition stage in A.P.’s case, the circuit court was supposed to consider the 6 “best interests of the children” factors, but it only considered 5. The testimony on the missing factor was conflicting. Thus, the court of appeals reversed this TPR and remanded for further proceedings.