On Point: Important Posts

On October 29, 2020, the court of appeals ordered the publication of the following criminal law related opinions:

Eau Claire County DHS v. S.E., 2019AP894, review of a published opinion granted 10/21/20, case activity.

When the court orders a child in need of protection or services (“CHIPS”) placed outside the family home, a parent’s rights may be terminated if he or she fails to meet the conditions for the child’s return in the timeframe set out by statute. Wis. Stat. § 48.415(2)(a). In April 2018, the legislature shortened this timeframe. Under either version, the CHIPS order placing the child outside the home must include “notice” of “any grounds for termination of parental rights[.]” Wis. Stat. §§ 48.415(2)(a) and
48.356.

Issues for Review:

Whether as a matter of statutory construction the new, shorter timeframe begins with the initial CHIPS order, even if it predates the change in the statute and thus does not include notice of the shorter timeframe.

Whether starting the shorter timeframe with a CHIPS order that predates the statutory change violates a parent’s due process rights.

State v. Dawn M. Prado, 2016AP308, cross-petitions for review of a published court of appeals decision granted 10/21/20; case activity (including briefs and, now, PFRs!)

You’ve heard this one before. Here’s our post on the court of appeals decision, which struck down the unconscious-driver provisions of the implied-consent statute but nevertheless declined to suppress the blood draw results under the good-faith doctrine. Perhaps you imagined the matter resolved, particularly given that after several failures to decide the question, SCOW had begun declining the court of appeals’ certification requests on the topic. No such luck.

State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)

Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.

Lange v. California, USSC No. 20-18, certiorari granted 10/19/20; vacated and remanded, 6/23/21

Question presented:

Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant?

Racine County DHS v. W.L.J., 2020AP197-198, October 14, 2020, District 2 (1-judge opinion, ineligible for publication); case activity

Good news for defense lawyers in TPR cases. The court of appeals means business. This is the third time in less than a year that it has reversed a termination of parental rights order due to a circuit court error on the question of whether a parent “abandoned” his or her child.

State v. Manuel Garcia, 2020 WI App 71, petition to review granted, 1/20/21, affirmed by an evenly divided court, 2021 WI 76; case activity (including briefs)

Even if a court suppresses a defendant’s voluntary statement because it was obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), the state may use the statement to impeach the defendant if he or she elects to testify. Harris v. New York, 401 U.S. 222 (1971); James v. Illinois, 493 U.S. 307 (1990). The issue in this case is whether this “impeachment exception” allows the state to use the defendant’s statement  to “rehabilitate” one of its witnesses. The court of appeals holds it does not: the state may use an illegally obtained statement only to impeach the defendant’s testimony.

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

Portage County v. E.R.R., 2020AP870-FT, District 4, 10/1/20 (one-judge decision; ineligible for publication); case activity

As the supreme court recently emphasized, at a proceeding to extend a ch. 51 commitment, proving dangerousness under § 51.20(1)(am) requires evidence establishing that the person is likely to be dangerous under one of the specific standards in § 51.20(1)(a)2. if treatment is withdrawn. Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942 N.W.2d 277. There was not enough evidence in this case to prove E.R.R. was dangerous under one of those standards.

On September 30, 2020, the court of appeals ordered publication of the following criminal law related decisions: