On Point

State v. Dawn M. Prado, 2020 WI App 42, cross petitions for review granted, 10/21/20, affirmed, 2021 WI 64; case activity (including briefs)

They must have gotten tired of waiting. After SCOW failed (or refused) to decide the question in Howes, Brar, Mitchell, and Hawley, and SCOTUS likewise punted in Mitchell v. Wisconsin, the court of appeals now does what those higher courts could or would not: it rules on the constitutionality of Wis. Stat. § 343.305‘s provisions that permit police to withdraw blood from an incapacitated or unconscious motorist on the theory that they’ve “consented” to this by driving. And, like the vast majority of jurisdictions to consider similar questions, our court holds this provision unconstitutional, rejecting the state’s argument that statutorily-imputed consent is the type of “consent” that provides an exception to the warrant requirement. But the court also says the statute was not, at the time of Prado’s arrest, so plainly unconstitutional that the officer could not rely on it in good faith. Thus the court declines to suppress the test results.

State v. Alfonso Lorenzo Brooks, 2020 WI 60, 6/25/20, reversing a per curiam court of appeals decision, 2018AP1774, case activity (including briefs)

The police stopped Brooks for speeding in Milwaukee. Specifically, they pulled him over to the side of a residential/commercial road. The police quickly learned Brooks had a suspended license and was a convicted felon. They wrote him tickets for the speeding and operating on a suspended license. Brooks wasn’t arrested then, but he couldn’t drive away either, on account of the license issue. So, police told him, they were towing his car to impound–even though he told them his girlfriend (to whom the car was registered) was nearby and could pick it up. The police said no, that was against department policy, and then did an inventory search of the car. That search turned up a gun, which Brooks, as a felon, could not have. Then he was arrested.

State v. Russell L. Wilson, 2019AP49, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Wilson was charged with repeated second-degree sexual assault of a child under Wis. Stats. §§ 948.02(2) and 948.025(1)(e). That’s a Class C felony carrying a max of 25 in and 15 out. But the state alleged that he also qualified for the repeater enhancer in Wis. Stat. § 939.618(2)(b). That would change the max to life without the possibility of parole or ES. Everybody–Wilson, his lawyer, and the judge–apparently believed the repeater applied, but, after Wilson pleaded and was sentenced, DOC informed the court that it did not. So the correct max IC term for the crime Wilson pleaded to was 25 years, not life. He moved to withdraw his plea, alleging the error meant it wasn’t knowing, voluntary and intelligent. The circuit court denied the motion, and the court of appeals now reverses.

State v. Chad W. Kessler, 2019AP524, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Kessler went to trial on several counts, the most serious of which was burglary. Five days before trial was to begin, he asked to represent himself with his prior counsel as standby. The court granted the request after a hearing. Kessler represented himself for one day of the trial before giving the reins back to his attorney. Postconviction, he asserts that the court’s colloquy on self-representation was inadequate because it should have delved deeper into mental health concerns. He also claims he was incompetent to represent himself due to auditory hallucinations caused by schizophrenia. The court heard evidence and denied the motion, and Kessler appealed.

County of Milwaukee v. Christann Spannraft, 2018AP1553 & 1554, 6/23/20, District 1 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

This is a pro se appeal of an OWI-1st conviction. Spannraft raises three claims, all of which are rejected.

State v. Mark D. Jensen, 2018AP1952, petition for review of a summary court of appeals order granted 6/16/20; affirmed 3/18/21; case activity

Usually we do to the issues presented first. Here, they’re pretty insubstantial, so let’s just say what’s going on: the supreme court has intervened to (potentially) save a manifestly unconstitutional (and you don’t have to take our word for it) homicide conviction and life sentence in a notorious case.

Winnebago County v. S.H., 2020 WI App 46; case activity

The court of appeals rarely publishes opinions in “fast track” cases. It took that unusual step here. The opinion strives to show the type of evidence that is sufficient for a recommitment even though the mentally ill person has taken all of her medication and has maintained stable housing and employment for two years.

State v. Nathaniel Lee Mattson, 2019AP201-CR, 6/16/20, District 3 (1-judge opinion, ineligible for publication); case activity (including briefs)

Mattson pled guilty to domestic battery and disorderly conduct and moved to withdraw his pleas after sentencing. Argued that he did not realize that the decision as to whether accept a plea or go to trial was exclusively his. And during the colloquy the circuit court did not inform him of that fact.

Fond du Lac v. S.N.W., 2019AP2073, 6/17/20, District 2 (1-judge opinion, ineligible for publication); case activity

We detect the unmistakable odor of SCOW bait. One of two court appointed medical experts failed to submit his examiner’s report within 48 hours before the final hearing for an original commitment of a prisoner. S.N.W. argued that this violation deprived the circuit court of competence to adjudicate the case. Alternatively, if the court retained competency, the report had to be excluded. The court of appeals disagreed. Who needs expert reports 48 before trial? Not defense lawyers striving to defend their clients’s rights. They can just wing it. This decision is at odds with several unpublished opinions and thus sets up a good petition for review.

State v. Alfonzo C. Loayza, 2018AP2066-CR, petition for review of a per curiam opinion granted 6/16/20; case activity

Issue (from the State’s petition for review):

It is well established that a DOT record is competent proof of a defendant’s prior conviction and can therefore be used to enhance the defendant’s sentence. It is also  well established  that a defendant may challenge the existence of a  conviction listed on a DOT record. But currently, there is no accepted procedure for how a defendant should challenge the existence of a conviction listed in a DOT record and what burden he must satisfy to make a DOT record so unreliable that it no longer qualifies as competent proof of the conviction.

Do the lack of a judgment of conviction for a prior offense and other documents that “support the inference” that the conviction does not exist render a Wisconsin DOT driving record that lists the conviction so unreliable that it is no longer competent proof of the conviction?