On Point

State v. Michael A. Rakel, 2017AP2519, 2/17/21, District 1 (not recommended for publication); case activity (including briefs)

Michael Rakel was convicted of the 1st degree reckless homicide of Andre Taylor, who had a teenage daughter. Taylor was under a court order to pay child support to her. The court of appeals held that Rakel must now pay restitution in an amount equal to Taylor’s child support obligation.  However, the record was unclear about whether the mother of Taylor’s daughter was eligible to receive the restitution payment for the daughter. The court of appeals remanded the case for further proceedings on that issue.

State v. James A. Jones, 2021 WI App 15; case activity (including briefs)

Sometimes friends or relatives post bail so that a loved one charged with a crime can be released. This published decision holds that when charges are dismissed and read in at sentencing, and the court doesn’t order restitution on those charges, the bond money must be returned to the payors. This rule applies even to global plea deals where the defendant pleads “no contest” to and is ordered to pay restitution on some charges, but other charges are dismissed and read in without a restitution order.

The Wisconsin State Bar has issued a new ethics opinion on working remotely, which we’ve all been doing to some degree during the pandemic. Practicing law from home or a location outside Wisconsin implicates several ethical duties–for example, the duty to maintain the confidentiality of client information and duty to supervise staff and junior lawyers. […]

State v. Alfonso C. Loayza, 2021 WI 11, 2/11/21, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court unanimously holds that the state proved by a preponderance of the evidence that Loayza was convicted of OWI in California in 1990, making his current Wisconsin offense a eighth offense.

State v. Omar S. Coria-Granados, 2019AP1989-CR, District 4, 2/11/21 (not recommended for publication); case activity (including briefs)

In this child sexual assault the circuit court denied the state’s motions to admit other-acts evidence under § 904.04(2) and to allow the use of an audiovisual statement of a complainant under § 908.08. In a long (39 page) decision addressing the multiple legal questions and fact specific issues, the court of appeals reverses the circuit court’s other-acts order but affirms the denial of the motion to admit the audiovisual statement.

Waupaca County v. K.E.K., 2021 WI 9, 2/9/21, affirming an unpublished COA opinion, 2018AP1887; case activity

Waupaca County sought to extend Kate’s initial commitment for one year. The County’s examiner and witnesses agreed that she had not been dangerous during her initial commitment. She had taken her medication and was doing really well. She even agreed to take medication going forward, provided that it was not the one that had caused horrible side effects because it made her feel better. The circuit court recommitted her because the doctor opined that she would stop treatment in the future and become a proper subject of commitment. She challenged the constitutionality of §51.20(1)(am) on its face and as applied under the 14th Amendment. In a 5-2 decision, SCOW upheld the statute.

State v. Brian L. Halverson, 2021 WI 7, affirming a published court of appeals opinion, 2018AP858CR; case activity (including briefs)

Halverson was interrogated over the phone by a police officer while he was in jail on an unrelated matter. Wisconsin courts once treated incarceration as per se Miranda custody, believing that was the law SCOTUS had established. But Howes v. Fields, 565 U.S. 499 (2012), held that it’s not. Halverson argued the Wisconsin Supreme Court should adopt the per se rule under our state’s Constitution, but SCOW now declines. It also holds that the particular circumstances here didn’t amount to custody in the absence of such a rule.

State v. Westley D. Whitaker, 2021 WI App 17, petition to review granted, 6/16/21, affirmed, 2022 WI 54; case activity (including briefs)

This appeal raises a hot-button issue likely to interest SCOW. Just last year an investigative journalist reported that Amish communities do not report sexual assaults of children to social workers or police. Parents and church elders strive to address the problem themselves. (NPR story). That’s what happened in Whitaker’s case. He repeatedly sexually assaulted his younger sisters then stopped when he was 14. His crimes went unreported until he was 25, well after he had left the Amish community. He pled to one count of 1st-degree child sexul assault and requested a “fines only” sentence. The circuit court found no risk that he would re-offend and no need for rehabilitation. Yet it imposed a prison sentence in order to “send a message” to the Amish community that this behavior is unacceptable and members need to report it.

State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs)

The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then denied Atwater’s postconviction motion because he couldn’t get trial counsel to the hearing and couldn’t prevail without trial counsel’s testimony. The court of appeals holds the circuit court erroneously exercised its discretion by rejecting Atwater’s request for remote testimony by trial counsel.

State v. Kendell Marcel White, 2020AP588-CR, District 1, 2/2/21 (one-judge decision; ineligible for publication); case activity (including briefs)

In the course of a traffic stop based on a bad parking job, excessively tinted windows, and no visible plates, police searched the car and found a concealed weapon. The court of appeals holds the search was unreasonable under the totality of the circumstances.