On Point

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.

State v. C.G., 2021 WI App 11; petition for review granted 4/27; case activity

Ella–a pseudonym–was adjudicated delinquent for a sexual assault committed when she was 15. Ella’s legal name is masculine in association; during her juvenile disposition she was transitioning to a female identity. In this appeal she challenges the circuit court’s refusal to stay sex offender registration under Cesar G., and also submits that the registry’s prohibition on changing her legal name violates her First Amendment right to express her identity. The court of appeals upholds the circuit court’s discretionary decision on the former claim; on the latter it offers three blithe paragraphs of discussion before casually announcing–in a decision that is set to be published, and thus binding–that requiring a transgender woman to use a man’s name implicates no First Amendment concerns whatsoever.

State v. Shondrell R. Evans, 2020AP286-CR, District 4, 1/28/21 (not recommended for publication); case activity (including briefs)

Evans was seized under the Fourth Amendment when two police officers parked their marked squad cars in a way that restricted—though didn’t totally obstruct—his ability to drive away, shined their headlights and spotlights on his car, and exited their squad cars and approached Evans’s car. Because the police lacked reasonable suspicion to detain Evans, the resulting search of his car was unlawful.

Adams County v. D.R.D., 2020AP1426, 1/28/21, District 4; case activity

This appeal posed a simple question about due process in a Chapter 51 commitment proceeding. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) held that the 14th Amendment requires the county to give a person sufficient notice of the legal standard under which she is being detained so that she has a reasonable opportunity to prepare a defense. D.R.D. raised this issue on appeal but since trial counsel had not preserved the objection, the court of appeals held the issue forfeited.

State v. Samuel Martin Polhamus, 2019AP2339-CR, 1/28/21, District 4 (1-judge opinion, ineligible for publication); case activity

The State charged Polhamus with bail-jumping and disorderly conduct. A jury acquitted on the first charge and convicted on the second. Polhamus appealed pro se and, according to the court of appeals, appeared to argue that the State’s evidence of his alleged disorderly conduct both inside and outside of a bar was insufficient.

Click here to read an interesting decision from the Tennessee Supreme Court. A lawyer who claimed that he was engaging in dark humor told a Facebook friend how to shoot someone and avoid conviction by making it look like self-defense.  He was charged with ethics violations, and his license was suspended for 4 years. The Tennessee Supreme court held that lawyers are bound by ethics rules in any setting–including on social media.

State v. V.R., 2020AP798 & 2020799, 1/26/21, Distrct 1 (1-judge opinion; ineligible for publication); case activity

This is an appeal from an order terminating V.R.’s parental rights. The court of appeals rejected a no-merit report because the record revealed that neither defense counsel nor the circuit court had discussed the meaning of a “substantial parental relationship” with V.R. before she pled no contest to failure to assume parental responsibility. On remand, V.R moved to withdraw her no contest plea and filed an affidavit. She lost her motion and now her appeal because she did not appear at the plea withdrawal hearing.

On January 27, 2021, the court of appeals ordered the publication of the following criminal law related decisions:

State v. Mercado, 2021 WI 2, 1/20/21, reversing a published court of appeals decision; case activity (including briefs)

Mercado stood trial for sexual assault of three young girls. A video of each girl’s forensic interview was played for the jury pursuant to Wis. Stat. § 908.08. Mercado contends that none of the videos were properly admitted. The supreme court holds that he forfeited most of his challenges, and rejects those it considers.