On Point: B. Opinions

State v. Diamond J. Arberry, 2018 WI 7, affirming a published court of appeals decision; case activity (including briefs)

The supreme court holds that a defendant may not seek expunction after sentence is imposed because the language of § 973.015 and State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, require the decision regarding expunction to be made at the sentencing hearing.

State v. Frederick S. Smith, 2018 WI 2, 1/9/18, reversing an unpublished court of appeals opinion; case activity (including briefs)

This 60-page, 4-3 decision authorizing an officer to continue a traffic stop even after he realizes that he does not have reasonable suspicion is worth reading. Justice Kelly says the result sends “a tremor through the Foundation of the Fourth Amendment” and should “shock” you. Opinion, ¶67, ¶79. It certainly appears to contradict Rodriguez v. United States, 135 S. Ct. 1609 (2015) and should make for a great cert petition.

State v. Michael L. Washington, 2018 WI 3, 1/9/18, affirming a published court of appeals decision; case activity (including briefs)

The supreme court determines that, despite the absence of any colloquy, a defendant who was not present for his trial waived his statutory right to be there.

State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)

A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2). State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.

OLR v. Michael D. Petersen, 2016AP563-D, 12/15/17 (case activity )

I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction in my Outagamie County Wisconsin Case No. 15CM878. This disclosure is required as one of the conditions of my probation. Op. ¶34

Do we have your attention?

State v. Ginger Breitzman, 2017 WI 100, 12/1/17, affirming an unpublished court of appeals decision; case activity (including briefs)

Breitzman was convicted at trial of several counts of child abuse (for physical assaults) and neglect of her son, J.K. She was also convicted of a charge of disorderly conduct for an incident inside their home in which she called him a “fuck face,” a “retard,” and a “piece of shit.” The lead issue is whether her trial lawyer was ineffective for not trying to get the DC dismissed because her words were protected by the First Amendment. The court refuses to decide.

Jeremy Perri guests posts on State v. Adam M. Blackman, 2017 WI 77, 7/7/17, reversing a published court of appeals opinion, 2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94; case activity (including briefs)

SCOW suppresses blood test, holding that the statutory Informing the Accused misrepresented the consequences of a refusal, the consent was coerced, and the exclusionary rule is necessary to deter future violations.

Mike Tobin guest posts on State v. Lewis O. Floyd, Jr., 2017 WI 78, 7/7/17, affirming a published court of appeals opinion, 371 Wis. 2d 404; case activity (including briefs)

The majority opinion affirms the rulings of the lower courts that the defendant voluntarily consented to a frisk of his person following a traffic stop. The majority reached its decision without discussing the reasonableness of the officer’s suspicion of criminal activity-an issue emphasized in the dissenting opinion and previously analyzed by the court of appeals.

State v. Navdeep S. Brar, 2017 WI 73, 7/6/17,  affirming an unpublished court of appeals opinion, 2015AP1261-CR; case activity (including briefs)

By obtaining a driver’s license or operating a vehicle in Wisconsin do we automatically give the government consent to draw our blood without a warrant? A nose count reveals the answer remains “maybe.”

State v. Kenneth M. Asboth, Jr., 2017 WI 76, 7/6/2017, affirming an unpublished court of appeals decision; case activity (including briefs)

This case presented an issue that has divided federal and state appellate courts: does Colorado v. Bertine, 479 U.S. 367 (1987), permit “community caretaker”-type vehicle impoundments only when the police act accord to “standard criteria”? The majority in this case joins the “no” camp; the dissent says the majority has “buck[ed] the nationwide trend” and expanded the community caretaker doctrine into a “pretext to engage in unconstitutional searches” for evidence of crime.