On Point

State v. Scott A. Walker, 2019AP1138, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury found Walker guilty of intentionally pointing a firearm at a person contrary to Wis. Stat. § 941.20(1)(c). He claims his trial lawyer was ineffective for failing to raise a defense under Wis. Stat. §§ 939.45(2) and 939.49(1), which provide a privilege “to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property.” The court of appeals has some doubt that Walker adequately raised this claim at the Machner hearing, ¶¶6-7, but decides it anyway on the merits, holding there was no prejudice because the facts couldn’t possibly make out the defense.

State v. Jeffrey D. Lee, 2018AP1507-CR, 11/5/19, District 1 (not recommended for publication); case activity (including briefs)

At a jury trial for child sexual assault, the circuit court admitted “other acts” evidence that Lee had similarly assaulted 5 other children. The court of appeals called the “other acts” evidence of the 3rd, 4th and 5th children “textbook hearsay,” held that the circuit court erred in admitting it, but affirmed based on the harmless error doctrine.

State v. Michael A. Nieman, 2017AP1906-CR, 11/7/29, District 4, (1-judge opinion, ineligible for publication); case activity (including State’s brief)

Nieman, pro se, appealed an order for over $13,000 in restitution entered after he pled to felony theft by false representation. The court should not have awarded any restitution, he argued. Or, if restitution was permitted, then it should be zero due a civil judgment against him arising from the same conduct.

G.K. v. S.C., 2019AP1645, 2019AP1646, & 2019AP1647, District 4, 11/7/19 (one-judge decision; ineligible for publication); case activity

S.C.’s parental rights to her three children were terminated due to continued denial of periods of physical placement under § 48.415(4) based on a family court order that denied her periods of physical placement. She argued the family court order could not be the basis for a TPR because it didn’t advise her of the conditions necessary for the children to be returned to her or for her to be granted placement or visitation. Maybe so, says the court of appeals, but the statute doesn’t require the family court order to do that.

State v. C.M., 2019AP1483, District 1, 11/5/19 (one-judge decision; ineligible for publication); case activity

The circuit court didn’t err in entering a default judgment against C.M. in her termination of parental rights proceeding. 

Waupaca County v. J.J., 2019AP805, 10/29/19, District 4 (one-judge decision; ineligible for publication); case activity

J.J. challenges the termination of his parental rights, alleging trial counsel was ineffective and lack of a factual basis for his no contest plea. The court of appeals rejects both claims.

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.