On Point blog, page 62 of 97
State v. Shantell T. Harbor, 2009AP1252-CR, Wis SCt rev granted 9/22/10
decision below: unpublished; for Harbor: Joseph E. Redding; court of appeals briefs: BiC; Resp.; Reply
Issues (from Table of Pending Cases):
Whether a defendant presented a new factor entitling sentence modification (See State v. Franklin, 148 Wis. 2d 1, 8, 434 N.W.2d 609 (1989).
Whether a defendant demonstrated ineffective assistance of counsel under Strickland v.
OWI – Collateral Attack on Priors
State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10
court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply
A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from Bucknell’s testimony at the hearings on his motion that he was aware of his right to be represented by an attorney at the prior proceeding and that he knowingly and intelligently relinquished that right,”
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court of appeals decision (3-judge, not recommended for publication); for Boykin: Mark A. Schoenfeldt; BiC; Resp.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.