On Point

On October 30, 2019, the court of appeals ordered the publication of the following criminal law related decision: State v. Amy Joan Zahurones, 2019 WI App 57 (defendant entitled to credit under § 973.155 toward sentence imposed after revocation of deferred entry of judgment agreement)

United States v. James Atwood, No. 18-2113 (7th Cir. Oct. 24, 2019)

Atwood is entitled to a new sentencing hearing because the judge in his case was communicating ex parte with the prosecutor’s office about other cases, and the content of the correspondence invited doubt about the judge’s impartiality in proceedings involving the prosecutor’s office.

State v. Jamie Lane Stephenson, 2019 WI App 63, petition for review granted, 3/17/20, affirmed, 2020 WI 92; case activity (including briefs)

At a hearing on a committed person’s petition for discharge from a ch. 980 commitment, the state has the burden of proving the person is still a sexually violent person—that is, that the person: (1) has a mental disorder; and (2) is dangerous because that mental disorder makes it more likely than not the person will commit sexually violent offenses in the future. § 980.09(3). The court of appeals holds that even though the state needs an expert to prove the person has a mental disorder, it doesn’t need an expert to prove the person is dangerous because of the mental disorder.

State v. Tunis Jay LeFever, 2019AP702-CR, District 2, 10/30/19, (1-judge opinion, ineligible for publication); case activity (including briefs)

An officer stopped LeFever for speeding, noticed that he had bloodshot eyes, and detected a faint odor of alcohol but wasn’t sure of the source. He asked LeFever to complete field sobriety tests. The officer noted indicators of impairment on some of the tests and LeFever’s bright green tongue. A PBT test did not detect the presence of alcohol in LeFever’s system. The officer suspected marijuana.

Sauk County v. R.A.S., 2018AP2253, 10/31/2019, District 4 (one-judge decision; ineligible for publication); case activity

R.A.S. was committed after a ch. 51 jury trial. The county alleged and the court instructed on two forms of dangerousness–those in Wis. Stat. § 51.20(1)(a)2.c. and 2.d.. R.A.S. asked that the verdict form require the jury to agree on one, the other, or both to commit him, but the circuit court refused, instead submitting a form that just asked the jury if R.A.S. was “dangerous.” The court of appeals now affirms this decision, rejecting R.A.S.’s due-process claim and saying that In re Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603, controls the question–though it in fact has only glancing relevance to the issue.

State v. Ross Harris, Jr., 2018AP1667, 10/24/2019, District 4 (one-judge opinion; ineligible for publication); case activity (including briefs)

The charges in this case, disorderly conduct and battery, arose from an altercation in a hospital elevator. The state said Harris, newly a grandfather, had attacked A.D., the fiancé of his newborn grandchild’s maternal grandmother, while both were visiting the baby. Harris said it was A.D. who had attacked him.

State v. Jeffery Scott Wiganowsky, 2019AP884-CR, District 4, 10/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Wiganowsky was charged for OWI in Wyoming in 2015. He negotiated a deferred prosecution agreement, which he successfully completed, so the charge was dismissed. But his driving privileges were administratively suspended due to his blood-alcohol content. (¶9). That counts as a prior OWI “conviction” under §§ 340.01(9r) and 343.307(1)(d).

State v. T.S.W., 2019AP450-451, District 1, 10/22/19 (1-judge opinion, ineligible for publication); case activity

The trial court failed to hold a hearing on T.S.W.’s motion for change of physical placement of her child, J.C., before the jury trial on the grounds phase of her TPR. She argued that this violated her right to due process because if she had prevailed at the hearing, the jury would have heard evidence that J.C. had been placed in the parental home with T.S.W., rather than outside the parental home.

State v. Mose B. Coffee, 2018AP1209, petition for review granted 10/18/19; affirmed 6/5/20; case activity (including briefs)

Issue:

Whether evidence obtained during a warrantless search of a person’s vehicle
incident to his OWI arrest must be suppressed when there was no reason to believe that evidence of the OWI arrest would be found in the area of the vehicle searched by officers.

State ex rel. Milton Eugene Warren v. Michael Meisner, 2019AP567-W, petition for review granted 10/16/19; reversed and remanded 6/10/20; case activity

Issue (composed by On Point based on the petition for review)

Whether under State v. Starks, 2013 WI 69, Warren’s § 974.06 postconviction motion alleging ineffective assistance of counsel by the lawyer appointed on direct appeal should be heard in the circuit court or the Court of Appeals.