On Point blog, page 61 of 96
Probation Search
State v. Seneca Joseph Boykin, 2009AP2499-CR, District 2, 9/22/10
court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.
A probation agent may not evade the warrant requirement by acting as a “stalking horse” for the police in conducting a warrantless search of a probationer’s residence, ¶10. In this instance, probation officer Navis, acting on reliable information that Boykin was using and selling cocaine,
State v. Omer Ninham, 2008AP1139, Wis SCt rev granted 9/13/10
decision below: 2009 WI App 64; for Ninham: Frank M. Tuerkheimer; Bryan Stevenson; Rebecca Kiley
Issues (from Table of Pending Cases):
Whether Roper v. Simmons, 543 U.S. 551 (2005) and Graham v. Florida, 130 S.Ct. 2011 (2010) are applicable to revise the sentence of a defendant whose crime(s) were committed as a juvenile.
Whether the sentence constitutes cruel and unusual punishment under state and federal constitutions.
Recorded Confessions; Sentence Credit – Predisposition Secure Detention
State v. Dionicia M., 2010 WI App 134; for Dionicia M.: Andrew Hinkel, SPD Madison Appellate
Recorded Confessions
The juvenile was in custody when she was directed to the locked back seat of a patrol car so that she could be transported back to school after being reported truant; and, because it was feasible under the circumstances to record her ensuing statement, failure to do so rendered it inadmissible.
Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10
court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.
Reasonable Suspicion – Traffic Stop
Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.
¶6 Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions.
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply
Sentence – Factors – Exercise of Constitutional Right
Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,
Sentencing – Factors
State v. William Webber, 2010AP9-CR, District 3, 8/17/10
court of appeals decision (1-judge, not for publication); for Webber: Chris A. Gramstrup; BiC; Resp.
On charges of 4th degree sexual assault and obstructing, the sentencing court properly considered, as both aggravating and mitigating, Webber’s 30-year history as a law enforcement officer, as well as his nonconsensual videotaping of his ex-wife.
State v. Brent S. Watling, 2009AP1727-CR, District 2, 8/11/10
court of appeals decision (3-judge, not recommended for publication); for Watling: Margaret A. Maroney, Shelley M. Fite, SPD, Madison Appellate; BiC; Resp.; Reply
Sentencing – Exercise of Discretion – Sex Offender Registration
The sentencing court properly exercised discretion in requiring Watling to register as a sex offender on his conviction for 4th-degree sexual assault, ¶¶7-15.
Registration requirements are set out in § 301.45.
Restitution – Settlement Agreement
State v. Theresa E. Palubicki, No. 2010AP555-CR, District 3
court of appeals decision (1-judge, not for publication); for Palubicki: Michael D. Petersen; BiC; Resp.; Reply
The burden of proving setoff rests with the defendant. Although Palubicki reached a settlement agreement with the hit-and-run victim, she did not meet her burden of proving that the agreement covered lost wages, therefore she is liable for them in restitution.
Judicial Bias – Sentencing after Revocation
State v. James Robert Thomas, No. 2010AP332-CR, District III, 7/27/10
court of appeals decision (1-judge, not for publication); for Thomas: Steven D. Phillips, SPD, Madison Appellate; BiC; Resp.; Reply
The sentencing court exhibited objective bias, requiring resentencing, when it imposed the maximum on sentencing after revocation, given the court’s threat when it placed Thomas on probation to do just that if his probation were revoked.
Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion
State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply
Sufficiency of Evidence Review
Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,