On Point blog, page 1 of 19
COA holds plea questionnaire and waiver of counsel forms insufficient to shift burden for collateral attack
State v. Matthew John Flynn, 2024AP2306-CR, 12/17/25, District II (ineligible for publication); case activity
Flynn appeals his operating while intoxicated, third offense, conviction and an order denying his collateral attack motion. He argues that the circuit court erred in denying his motion because he alleged sufficient facts to suggest that the prior conviction did not rest upon a knowing, intelligent, and voluntary waiver of his right to counsel. COA affirms.
COA resolves recurring challenge to DV enhancer, rejects reliance on Rector, and applies definition of “separate occasions” from prior case law
State v. Brian Tyrone Ricketts, Jr., 2024AP2291-CR, 12/9/25, District III (recommended for publication); case activity
Following on the heels of the recent litigation as to the meaning of “separate occasions” that reached SCOW in the Rector case, COA holds that two charges in the same case constitute “separate occasions” for the purposes of the domestic abuse repeater.
COA critiques Gramza but extends its holding to apply to § 973.195 petitions for sentence adjustment
State v. Angela R. Joski, 2023AP1371-CR, 10/29/25, District II (recommended for publication); case activity
The state appealed Joski’s early release under Wis. Stat. § 973.195, arguing that pursuant to State v. Gramza, 2020 WI App 81, ¶24, 395 Wis. 2d 215, 952 N.W.2d 836, Joski must fully serve the mandatory minimum three-year term of initial confinement prescribed by Wis. Stat. § 346.65. COA agrees due to Gramza‘s interpretation, and reverses.
SCOTUS requires jury to find whether prior offenses occurred on different occasions to enhance sentence under Armed Career Criminal Act
Erlinger v. United States, USSC No. 23-370, June 21, 2024, vacating United States v. Erlinger, 77 F.4th 617 (7th Cir. 2023); Scotusblog page (with links to briefs and commentary)
Whether offenses committed on three “occasions different from one another” for purposes of federal Armed Career Criminal Act must be found by a jury beyond a reasonable doubt.
Officer’s testimony about ZAP STICK merely “expositional,” not subject to 907.02(1)’s heightened reliability standard
State v. Danny Arthur Wright, 2021AP1252-CR, District 3, 05/16/23 (not recommended for publication); case activity (including briefs)
The state charged Wright with first degree sexual assault with use of a dangerous weapon. The alleged dangerous weapon at issue was a ZAP STICK. Wright filed a motion in limine to bar the state from calling a Detective to offer expert opinion testimony under Wis. Stat. § 907.02(1) and Daubert. The circuit court permitted the testimony after the state cautioned that it would not ask the detective whether the ZAP STICK used in Wright’s case was a dangerous weapon under the relevant statute. The court of appeals affirms on essentially the same basis: the detective’s testimony was permissible “expositional” testimony under State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609, and not subject to the heightened reliability standard for expert opinion testimony.
Defense win! Courts can’t apply §939.62(1) and §961.48 enhancers at the same time
State v. Tracy Laver Hailes, 2021AP1339-CR, 5/9/23, District 1, (recommended for publication); case activity (including briefs)
In a decision recommended for publication, the court of appeals holds that under §973.01(2)(c) a circuit court may apply either §939.62(1) (governing habitual criminality) or §961.48 (governing second or subsequent offenses) to enhance a penalty, but it may not apply both. While the circuit court erroneously applied both enhancers in this case, the court of appeals nevertheless denied Hailes’s claims for plea withdrawal, sentence modification, and resentencing.
Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification
State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR
The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.
Minnesota administrative suspension counts as prior OWI
State v. Jenny E. Clark, 2022AP495-CR, District 4, 3/23/23 (one-judge decision; ineligible for publication); case activity (including briefs)
Clark’s Minnesota administrative suspension for operating with a prohibited alcohol concentration counts as a prior OWI conviction under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213.
COA reverses successful collateral attack, remands for hearing in light of Clark
State v. Robert J. Baur, 2021AP55, 8/25/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
An OWI defendant can attack prior convictions–thus seeking a lower offense number and lower associated penalty–only if he or she lacked counsel in that prior proceeding and did not knowingly, voluntarily and intelligently waive the right to counsel. Wisconsin courts have adopted a burden-shifting regime: if a defendant can show that the court in the prior proceeding didn’t do a proper colloquy on the counsel right, the state must then prove that the defendant nevertheless understood the right. But given that priors are often from quite a while ago, it often happens that no transcript of the prior hearing can be produced. What then?
California “wet reckless” offense counts as prior OWI in Wisconsin
State v. Evan J. Schnoll, 2021AP1119-CR, 4/28/22; District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
In 2020, Schnoll was charged with OWI 2nd. He challenged the validity of his prior OWI, which occurred in California, arguing that it could not be counted under Wisconsin law. The circuit court rejected his argument and counted the California conviction. The court of appeals granted Schnoll’s petition for leave to appeal but now affirms the circuit court.