On Point: 3. Particular statutes

State v. Shawn J. Robinson, 2012AP2498-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Robinson was convicted of  two misdemeanors which were enhanced under the repeater statute, § 939.62(1)(a). He was sentenced on each count to bifurcated sentences consisting of one year of confinement and one year of extended supervision. (¶¶2-4). He later challenged the sentences under State v.

Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity

Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.

The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,

State v. James A. Krahn, 2012AP1898-CR, District 2, 1/30/13; court of appeals decision (1-judge, ineligible for publication); case activity

Motion to dismiss second-offense OWI charge was properly denied, where the charge resulted from the state’s successful motion to reopen a conviction for a first offense that had been entered a few weeks after a conviction in another case that was also treated as a first offense:

¶6        Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis.

State v. Scott B. Bohlinger, 2013 WI App 39; case activity

Bohlinger made a prima facie showing that two prior OWI convictions were invalid because he did not knowingly and intelligently waive the right to counsel due to his limited cognitive capabilities. The circuit court concluded he had not made such a showing because he did not allege any deficiency in the colloquies addressing the waiver of counsel in the earlier cases.

State v. Juan G. Gracia, 2013 WI 15; affirming unpublished court of appeals decision; case activity

Warrantless Entry – “community caretaker” exception

Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine because the police had an objectively reasonable basis to believe Gracia needed assistance, distinguishing State v.

State v. Verhagen, State v. Nickles,  State v. Van Asten, and State v. Bell, 2013 WI App 16; consolidated court of appeals decision; case activity: Verhagen; Nickles; Van Asten; and Bell

OWI – Use of first offense to enhance penalty

In a prosecution for a second or subsequent OWI offense, New Jersey v. Apprendi,

State v. Joseph L. Hernandez, 2012AP2148-CR, District 2, 2/27/13; court of appeals decision (1-judge, ineligible for publication); case activity

The trial court properly found that Hernandez made a prima facie showing that a prior OWI conviction was invalid despite his poor recollection of details of the prior proceeding, distinguishing State v. Hammill, 2006 WI App 128, ¶11, 293 Wis. 654, 718 N.W.2d 747 (“a defendant who ‘simply does not remember what occurred at his plea hearing’ does not make a prima facie showing”):

¶10      Although this case somewhat resembles Hammill in that it involves a defendant’s less than perfect memory of the earlier proceedings and a sparse record,

State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding: The “3-strike” persistent repeater enhancement, § 939.62(2m)(d), requires that the two prior strikes occur before the current felony and the 1st strike’s conviction date precede the 2nd strike’s violation date. Although Long’s two prior strikes occurred before the current felony,

State v. Leonard J. Quintana, 2008 WI 33, affirming 2007 WI App 29
For Quintana: James B. Connell, Robyn J. DeVos, William R. Kerner

Issue/Holding:

¶81      We conclude that the school zone penalty enhancer is not unconstitutional as applied to Quintana. The legislature has sought to increase the penalty for those who commit violent crimes within 1,000 feet of “school premises.”

State v. Ronnie L. Thums, 2006 WI App 173
For Thums: Paul G. LaZotte, SPD, Madison Appellate

Issue: Whether an offense which was partially committed during the TIS-I regime but not completed until advent of TIS-II comes under the former or latter sentencing regime.

Holding:

¶11      Thums had not committed the crime of stalking with a dangerous weapon during TIS-I. He therefore did not become subject to the TIS-I penalties during TIS-I.