On Point blog, page 19 of 81
SCOW holds that expungement requires perfect compliance with DOC-imposed conditions of probation
State v. Jordan Alexander Lickes, 2021 WI 60, affirming a published court of appeals opinion, 2019AP1272-CR, 6/15/21, case activity (including briefs)
In State v. Ozuna, SCOW held that a young offender’s violation of any court-imposed conditions of probation renders expungement unavailable. Here, Lickes argued that: (1) the same rule does not apply to conditions imposed by the DOC, and (2) the circuit court has the discretion to find that an offender has satisfied the DOC’s conditions even if he has violated one or more of them and especially when, as in this case, the DOC itself requests expungement. In a split decision, SCOW rejects both arguments, making expungement a pipe dream for most young offenders.
SCOW disapproves “stipulated trial” workaround for guilty-plea waiver rule
State v. Jacob Richard Beyer, 2021 WI 59, 6/15/21, on certification from the court of appeals; case activity (including briefs)
On Point is proud to present a guest post by Tom Aquino of the Madison appellate office:
Defense win – cop violated Miranda by claiming suspect wouldn’t be able to testify at trial
State v. Daniel J. Rejholec, 2021 WI App 45; case activity (including briefs)
Police arrested Rejholec on suspicion of sexual assault of a minor. After receiving the Miranda admonitions, Rejholec agreed to speak with a detective. The interrogation was recorded on video. That video reveals the detective’s aggressive deployment of the so-called Reid technique: a method of extracting confessions (be they true or false). The detective bullies, cajoles and wheedles until he gets what he’s after: a confession. Oh, the detective also lies, floridly.
SCOW holds 2018 amendment to TPR statute applies to 2016 case
Eau Claire County DHS v. S.E., 2021 WI 56, affirming a published court of appeals opinion, 2019AP894, 6/10/21, case activity
In a 4-3 decision, SCOW holds that a 2018 amendment to the TPR statute, which imposed a more exacting timeframe for parents to preserve their parental rights, applied to a CHIPS order entered in 2016 when the statutory timeframe was more lenient. So much for the plain language of the statute and due process.
COA sets procedure for resuming juvenile cases suspended for incompetency to proceed
State v. M.D.M., 2021 WI App 42; case activity
In 2014, the State filed petitions charging M.D.M., a juvenile, with multiple counts of delinquency. He was found incompetent but likely to regain, so the court suspended these cases. In 2016, the State filed a new petition charging M.D.M. with 1 count of delinquency. This time M.D.M. was found competent to proceed, so the State wanted to resume prosecution of his 2014 case as well. This published opinion establishes the procedure for recalling a case after a juvenile regains competency.
Defense win! SCOW finds “seizure” where police held license while questioning driver
State v. Heather Van Beek, 2021 WI 51, 2019AP447-CR, on certification from the court of appeals, 6/4/21; case activity (including briefs)
In a splintered opinion, a majority of SCOW holds that an officer does not necessarily “seize” a driver when he takes her license to run a records check. Seizure depends on the totality of the circumstances. In this case, a seizure occured when the officer continued holding a license and questioning the driver until a drug-sniff dog arrived. And the seizure was unlawful because the officer lacked reasonable suspicion that criminal activity was afoot. Roggensack wrote the majority opinion. The liberals joined some parts of it, and the remaining conservatives joined other parts.
SCOW finds generic conduct in “high crime area” created reasonable suspicion of criminal activity
State v. James Timothy Genous, 2021WI 50, reversing an unpublished court of appeals opinion, 2019AP435-CR, 6/4/21; case activity (including briefs)
An officer saw Genous sit in a parked car, engine running and headlights on, in a residential neighborhood at 3:36 a.m. A woman emerged from a house, entered the car for 10 to 15 seconds, and returned to the house. Although the officer could not see what happened inside the car, the woman appeared to match the description of a female drug user who was known to live in the house. Plus the officer had heard that this area had a reputation for drug trafficking. In a 4-3 opinion, SCOW held that these facts gave the officer reasonable suspicion to stop Genous for possible drug dealing.
May 2021 publication list
On May 26, 2021, the court of appeals ordered the publication of the following criminal law related opinions:
COA approves joinder of counts, holds evidence can’t be “newly discovered” if it’s new
State v. Alijouwon T. Watkins, 2019AP1996-CR, 5/27/21, District 4 (recommended for publication); case activity (including briefs)
The state charged Watkins with several crimes stemming from a domestic violence call: these included escape and battery to one of the police officers who arrested him. While Watkins was in jail, the state charged him with three more crimes related to his alleged attempts to secure perjured testimony about the earlier incident and, the state said, have the arresting officer/alleged victim killed.
SCOW to review whether the county must appoint counsel when SPD can’t
State v. Nhia Lee, 2019AP221-CR, petition for review granted 5/19/21; case activity (including briefs)
Issues:
Whether a circuit court is required to appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance?
Whether Lee’s rights to due process, to counsel, and to a speedy trial were violated by his protracted pretrial confinement as he waited for the State Public Defender to find counsel for him.