On Point

Fond Du Lac County v. R.O.V., 2019AP1228, 2020AP853, 12/16/20, District 2 (1-judge opinion, ineligible for publication); case activity

In these consolidated cases, the court of appeals reviewed both Ray’s initial commitment and his 2nd recommitment (not his 1st recommitment), which has not yet ended. Although the initial commitment order expired long ago, the court held that it was not moot due to a recurring, “sufficiency of the evidence” regarding dangerousness that might affect the outcome of his appeal from the 2nd recommitment.

The doctors who examined Ray for his initial commitment and for his 2nd recommitment agreed that he is mentally ill and a proper subject for treatment. They diagnosed him with either bipolar disorder with psychotic features, schizoaffective disorder bipolar type, or schizophrenia.  The main dispute was over his alleged dangerousness.

State v. Gerald D. Taylor, 2019AP1244-CR, District 1, 12/15/20, (not recommended for publication); case activity (including briefs)

In 1999, a court imposed two, consecutive, 30-year indeterminate sentences on Taylor for child sexual assault. Accounting for the parole system in place, the court told Taylor he would be eligible for parole after serving one-quarter (15 years) of his sentence, and he could end up serving two-thirds (40 years), which is when he would reach his mandatory release date. Taylor moved for a sentence modification because the court didn’t realize his sentence had a presumptive release date (not a mandatory release) which results in a lengthier confinement.

Wisconsin is not alone. According to the ABA Journal, an Ohio Supreme Court justice has removed a trial court judge from 2 trials for allegedly failing to follow appropriate COVID precautions.

Jama I. Jama v. Jason C. Gonzalez, 2021 WI App 3; case activity (including briefs)

In Wisconsin, a person who brings a legal malpractice suit against the lawyer who represented the person in a criminal case must prove, among other things, that he or she is actually innocent of the criminal charge. Skindzelewski v. Smith, 2020 WI 57, ¶10, 392 Wis. 2d 117, 944  N.W.2d 575; Tallmadge v. Boyle, 2007 WI App 47, ¶¶15, 18, 300 Wis. 2d 510, 730 N.W.2d 173; Hicks v. Nunnery, 2002 WI App 87, ¶¶34-49, 253 Wis. 2d 721, 643 N.W.2d 809. But what happens in a case of “split innocence,” when the person is guilty of some of the crimes but not others? In a case of first impression, the court of appeals holds the person need only prove his innocence of the specific criminal charges as to which he alleges the lawyer performed negligently.

State v. Thomas A. Nelson, 2021 WI App 2; 12/9/20, District 2; case activity (including briefs).

This split court of appeals opinion, which is recommended for publication, has “petition granted” written all over it.  Crawford v. Washington, 541 U.S. 36, 68 (2004) held that a trial court violates a defendant’s right to confrontation when it receives into evidence out-of-court statements by someone who does not testify at trial, if the statements are “testimonial” and if the defendant has not had an opportunity to cross-examine the declarant of the statement.  Yet in this case, the court of appeals holds that Nelson’s confrontation rights were not violated when the circuit court admitted a “Sexual Abuse Evaluation” requested by the police for the purpose of collecting evidence even though the author of the evaluation did not testify at trial.

Washington County v. James Michael Conigliaro, 2020AP888, District 2, 12/9/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

Conigliaro appealed an order finding that he refused to submit to an evidentiary chemical test. He argued that the arresting officer, Joseph Lagash, led him to believe that he had the right to consult with an attorney before deciding whether to submit to the test and/or that Lagash failed to dispel his belief that he had the right to counsel. The court of appeals rejects both arguments.

Rico Sanders v. Scott Eckstein, 7th Circuit Court of Appeals No. 19-2596 (Nov. 30, 2020)

Sanders was give a 140-year sentence for sexual assaults he committed when he was 15 years old. He’ll be eligible for parole in 2030, when he’s 51. He argues he’s entitled to habeas relief because the Wisconsin Court of Appeals unreasonably rejected his claim that his sentence violates the Eighth Amendment under recent U.S. Supreme Court decisions dealing with life sentences for juveniles. The Seventh Circuit rejects his claim.

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.

On November 19, 2020, the court of appeals ordered the publication of the following criminal law related decisions: State v. Manuel Garcia, 2020 WI App 71 (voluntary statement obtained in violation of Miranda can’t be used in state’s case-in-chief—period) State v. Alan S. Johnson, 2020 WI App 73 (“Marsy’s Law” gives alleged victim standing to […]

City of Oshkosh v. Brian D. Hamill, 2020AP867, District 2, 12/2/20 (1-judge opinion; ineligible for publication); case activity (including briefs)

The facts are just that simple. At 2:38 a.m. (bar closing time) an officer observed Hamill’s Jeep drifting to the right line of its lane, then to the center for 30-40 feet, then to the left centerline, and then to the right line of its lane. It was undisputed that Hamlin’s Jeep never crossed over either lane marker. And yet the circuit held that these facts gave the officer reasonable suspicion to conduct an investigator traffic stop.