On Point

State v. Rasheem D. Davis, 2023 WI App 25; case activity (including briefs)

Addressing an issue of first impression in Wisconsin, the court of appeals holds that the circuit court’s order dismissing charges against Davis that was rescinded minutes later didn’t deprive the court of subject matter jurisdiction.

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)

Pursuant to the plea agreement, the state agreed to “not recommend a specific term of imprisonment.” At sentencing, the state argued for 27 years imprisonment, consisting of 12 years initial confinement and 15 years extended supervision. Nietzold objected, was denied a postconviction motion hearing in the circuit court, but the court of appeals reversed and ordered resentencing before a different judge. Now, a unanimous Wisconsin Supreme Court holds that the state “cured” its undisputed material and substantial breach because the prosecutor “acknowledged the blunder and modified the State’s recommendation to an undefined prison term-exactly what Nietzold agreed to.” (Opinion, ¶14).

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.

Richard Shirley v. Lizzie Tegels, 7th Circuit Court of Appeals No. 18-1713, 3/8/23

Shirley was shackled while he testified at his jury trial for 1st degree reckless homicide. In this federal habeas appeal, he argued that the shackling violated his constitutional right to present a complete defense. The 7th Circuit denied relief because no SCOTUS case clearly establishes that shackling a defendant while he is testifying violates that right.

State v. Noah D. Hartwig, 2022AP1802, 3/30/23, District 4; (one-judge decision; ineligible for publication) case activity (including briefs)

On an early evening in January, an officer noticed an unoccupied car parked in the lot of a public boat launch. She observed a purse in the vehicle and contacted dispatch to see if she could find out anything about the car; she said he was concerned that its erstwhile operator might need some assistance on the cold and icy night. While the officer was waiting in her squad for dispatch to respond, Hartwig arrived in the parking lot driving his Jeep. A female passenger got out of the jeep and into the mysterious car. The officer turned on her emergency lights and approached the vehicles.

On March 29, 2023, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Jeffrey D. Kosmosky, 2022AP1754-CR, District 2, 3/29/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The officer who stopped the car Kosmosky was driving for speeding had reasonable suspicion to extend the stop by having Kosmosky get out of the car and do FSTs.

State v. N.H., 2022AP1945, District 1, 03/14/2023, (one-judge decision, not eligible for publication) case activity

This case presents a relatively straightforward application of how Bangert applies to termination of parental rights pleas. As noted by the decision, however, the Wisconsin Supreme Court is currently considering a more nuanced version of the issue in State v. A.G. In Nico’s (N.H.) case, the court of appeals again holds that a circuit court’s incorrect explanation of the applicable statutory standard at disposition entitles the parent to an evidentiary hearing under Bangert to determine whether the state can prove the parent’s plea was entered knowingly, intelligently, and voluntarily. Opinion, ¶1.

State v. Morris V. Seaton, 2021AP1399-CR, certification granted 3/24/23;  remanded, 2023 WI 69;District 2; case activity (including briefs) case activity (including briefs)

Question presented (from the court of appeals’ certification):

In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d 426 (1982), and State v. Cofield, 2000 WI App 196, 238 Wis. 2d 467, 618 N.W.2d 214, still controlling law as they relate to the admissibility of prior nonconsensual sexual wrongs in cases involving an adult victim of an alleged sexual assault where consent is the primary issue?

State v. Y.P.V., 2022AP1935-36, 3/21/23, District 1 (1-judge opinion, ineligible for publication); case activity

The court of appeals reversed and remanded this TPR for two reasons. First, the mom made a prima facie case that her “no contest” plea to grounds was not knowing, intelligent, and voluntary because, during the plea colloquy, the circuit court misstated the law that would apply during the disposition. Then, at the disposition phase, the circuit court failed to apply the proper standard of law and misstated an important fact.