On Point blog, page 61 of 133
Probable Cause – PBT
State v. Jason E. Goss, 2011 WI 104, affirming court of appeals summary order; for Goss: Daniel J. Chapman; case activity
¶2 We are asked to determine whether the officer’s request for the PBT breath sample was made in violation of Wis. Stat. § 343.303, which states that an officer “may request” a PBT breath sample “[i]f a law enforcement officer has probable cause to believe that the person is violating or has violated s.
State v. Joseph C. Miller, 2010AP557-CR, rev. granted 12/13/11
on review of summary opinion; for Miller: Martha K. Askins, SPD, Madison Appellate; case activity
Terry Stop – Reasonable Suspicion
Issue (composed by On Point):
Whether information obtained from a jail inmate and other, anonymous sources established reasonable suspicion for a Terry stop.
Neither the court of appeals summary order nor Miller’s petition for review is available on-line. The briefs filed in the court of appeals indicate that Miller’s car was stopped after the police received information that he was transporting drugs.
State v. Michael L. Frey, 2010AP2801-CR, rev. granted 12/14/11
on review of unpublished decision; for Frey: Devon M. Lee, SPD, Madison Appellate; case activity
Sentencing Discretion – Reliance on Dismissed Charge
Issue (composed by On Point):
Whether sentencing discretion was erroneously exercised by undue reliance on, including unfounded inferences drawn from, a charge dismissed “outright.”
Frey was charged with sexually assaulting two girls. Both testified at the preliminary hearing. Frey ended up pleading no contest to assaulting one,
State v. Scott E. Ziegler, 2010AP2514-CR, rev. granted 12/14/11
on certification by-pass of court of appeals; for Ziegler: Christopher William Rose; case activity; prior post
Interfering with Custody, § 948.31(2)
Issue (from Certification):
In State v. Bowden, 2007 WI App 234, 306 Wis. 2d 393, 742 N.W.2d 332, we analyzed Wis. Stat. § 948.31(2), which deals with criminal charges for interference with custody of children. There,
State v. Randy L. Martin, 2010AP505-CR, rev. granted 12/13/11
on review of unpublished decision; for Martin: Byron C. Lichstein; case activity; prior post
Miranda – “Interrogation”
Issue (composed by On Point):
Whether an exchange between Martin and an officer was the functional equivalent of “interrogation” so as to require interrogation.
The facts, very briefly, as taken from the court of appeals’ decision: Martin was under arrest for DC when an officer fished a gun out of his car.
State v. Lee Roy Cain, 2010AP1599, rev. granted 12/1/11
on review of unpublished decision; for Cain: Faun M. Moses, SPD, Madison Appellate; case activity; prior post
Guilty Plea Procedure – Defendant’s Denial of Element / Manifest Injustice
Issues (composed by On Point):
1. Whether, if a defendant at the guilty-plea proceeding explicitly denies the existence of an elemental fact, the trial court must decline to accept the plea.
2.
State v. Roshawn Smith, 2010AP1192-CR, rev. granted 12/1/11
on review of unpublished decision; for Smith: William E. Schmaal, SPD, Madison Appellate; case activity; prior post
Sufficiency of Evidence (Possession with Intent to Deliver) – Circumstantial Evidence Standard of Review /
Stipulation (Offense Element) – Right to Jury Trial
Issues (from Smith’s PFR):
1. The Trial Evidence Was Insufficient to Support Smith’s Conviction of Possessing a Controlled Substance (THC) With Intent to Deliver,
Ineffective Assistance of Counsel – Deficient Performance but non-Prejudicial
State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity
Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.
- Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.
Monetary Sanction, Appendix- Content Certification Rule
In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94, remanding sanctions order; for State Public Defender: Joseph N. Ehmann; case activity; subsequent history: sanction re-imposed on remand
Monetary sanction summarily ordered by court of appeals against appellate counsel for allegedly violating appendix-content rule reversed, with following “suggestion” for procedure to be followed in such situations:
¶5 Considering the interests of the court of appeals,
State v. Abraham C. Negrete, 2010AP1702, rev. granted 10/25/11
on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity
Plea Withdrawal – Collateral Attack – Deportation Consequences
Issues (Composed by On Point):
1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.
2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.