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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
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SCOW clarifies how to calculate OWI fines subject to multiple enhancers
State v. Charles L. Neill, IV, 2020 WI 15, 2/14/20, reversing a published decision of the court of appeals; case activity (including briefs)
In this decision the supreme court explains how to calculate the minimum fine for an OWI when the fine is subject to multiple enhancer provisions. The supreme court’s calculation is better for defendants than the one arrived at by the court of appeals, though not the more favorable one advanced by Neill.
Attorney’s e-filing registration doesn’t eliminate need for personal service under § 801.02(1)
State ex rel. Michael J. Vieth v. John Tate II, 2018AP1525, District 4, 2/13/20 (not recommended for publication); case activity (including briefs)
Lawyers handling petitions for a writ of certiorari to review administrative decisions (or any other extraordinary writs, for that matter) should be aware of this decision. It holds that, under the electronic filing system statutes, the administrative agency’s attorney registering as a user does not relieve a petition of the obligation to personally serve the agency with the document initiating the proceeding.
Challenges to termination of parental rights are forfeited or meritless
Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity
N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless.
Trial counsel’s failure to disclose officer’s mental health issues before plea wasn’t prejudicial
State v. Jacqueline A. Ziriax Anderson, 2018AP2410-CR, District 3, 2/11/20 (one-judge decision; ineligible for publication); case activity (including briefs)
The state offered Anderson a deal: plead to OWI 2nd and it would recommend the minimum mandatory penalties. The state made that offer because the arresting officer had resigned from the department due to some “mental health issues” and the prosecutor apparently wasn’t eager to call him as a witness. Anderson’s lawyer found this out immediately before Anderson entered her plea—but didn’t tell Anderson. She learned about it afterward. (¶¶3-4, 8-11). While trial counsel performed deficiently by failing to tell Anderson that information before she pled, that doesn’t entitle her to plea withdrawal because she fails to show she would have insisted on going to trial if trial counsel would have told her, as required by State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).
SCOW: defendant didn’t forfeit sentencing claim by failing to object during sentencing
State v. Carrie E. Counihan, 2020 WI 12, 2/13/20 modifying and affirming an unpublished court of appeals decision, 2017AP2265; case activity (including briefs)
This case is the companion to State v. Coffee, which, though argued on the same day, came out a few weeks earlier and failed, in particularly confusing fashion, to announce any binding rule. This case does make a rule:
We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at he sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.
(¶4).
SCOW holds ch. 51 commitment not moot but affirms on the merits
Marathon County v. D.K., 2020 WI 8, 2/4/2020, affirming an unpublished court of appeals decision; 2017AP2217; (case activity)
The caption is the most confusing part of this opinion:
ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.
But it’s not as bad as it looks! And this decision makes (some) law: specifically, that an appeal of an original commitment is not moot where the commitment has the continuing effect of forbidding its subject to possess firearms.
Circuit court erred in admitting video statements of children under § 908.08
State v. Angel Mercado, 2020 WI App 14, petition for review granted, 5/19/20; reversed 1/20/20; case activity (including briefs)
The court of appeals orders a new trial for Mercado on the grounds the circuit court erred in admitting the video statements of three children who accused him of sexually assaulting them. The circuit court didn’t comply with the requirements of § 908.08(2) and (3) in admitting the videos, and the videos also weren’t admissible under the residual hearsay exception or as prior inconsistent statements.
Ban on firearm silencers is constitutional
State v. Thomas Michael Barrett, 2020 WI App 13; case activity (including briefs)
The court of appeals rejects Barrett’s facial and void-for-vagueness challenges to Wisconsin’s prohibition on firearm silencers, § 941.298.
Consent to draw blood was voluntary
State v. Justin T. Kane, 2018AP1885-CR, District 4, 2/6/20 (one-judge decision; ineligible for publication); case activity (including briefs)
Kane’s consent to a blood draw after his arrest for OWI was voluntary under all the circumstances.
SCOW expands municipal court jurisdiction, curbs collateral attacks on OWIs
City of Cedarburg v. Ries B. Hansen, 2020 WI 11, 2/11/19 (on bypass of the court of appeals); case activity (including briefs)
Municipal courts have subject matter jurisdiction over ordinance violations (e.g. an OWI 1st), and circuit courts have subject matter jurisdiction over misdemeanors and felonies (e.g. an OWI 2nd or subsequent). In this 4-3 decision, SCOW holds that a municipal court had subject matter jurisdiction over an OWI 2nd that was mischarged as an OWI 1st.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.