Explore in-depth analysis
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.
Important posts
Ahead in SCOW
Sign up
Defense win! Police lacked probable cause for OWI arrest due to unreliable FST results
State v. Scott J. Faruzzi, 2019AP167-CR, 9/25/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
Don’t pinch yourself! You’re not dreaming. An officer stopped Faruzzi’s truck for a “welfare check” due to some “possible family troubles.” But then he performed a series of FST’s and asked Faruzzi to submit to a preliminary breath test. When Faruzzi refused, the officer arrested him for OWL. The circuit court granted Faruzzi’s motion to suppress, and the court of appeals affirms due to lack of probable cause.
COA affirms trial court’s termination of parental rights based on the of the best interests of the child
State v. K.K.E., 2019AP115-117; 9/24/19, District 1 (1-judge opinion, ineligible for publication); case activity
The trial court terminated K.K.E.’s parental rights based on the best interests of her three daughters. On appeal, K.K.E. conceded that the trial court addressed the 6 “best interests of the child” factors required by §48.426(3). But she challenged the weight the trial court assigned to each factor. In affirming, the court of appeals explains how a trial court’s weighing of these factors is virtually unassailable on appeal.
The Wisconsin Supreme Court: what a difference 45 years makes
In its 1973-74 term, SCOW decided a whopping 316 appeals. In the 2018-19 term it decided only 58. Of course, there was no court of appeals back in 1974. Still, what a huge change in caseload! Click on SCOWstats.com’ new stat pack for the 1973-74 term to see more dramatic differences between then and now. (Spoiler […]
COA affirms domestic abuse modifier and domestic abuse surcharge
State v. Marvin Frank Robinson, 2019AP105-106-CR; 9/24/19; District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Robinson pled to misdemeanor battery with domestic abuse assessements and to knowingly violating a temporary restraining order in one case. He also pled to misdemeanor bail jumping (violation of the TRO) and other crimes in a second case. On appeal, he challenged trial court’s application of the domestic abuse modifier and its imposition of the domestic abuse surcharge, but the court of appeals affirmed.
Defense win! COA says no community caretaker search where no good reason to think anybody was hurt
State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.
COA: no subject-matter jurisdiction to address 20-years-past probation extension
State v. James Edward Olson, 2018AP1987, 9/17/18, District 1 (one-judge opinion, ineligible for publication); case activity (including briefs)
Olson says that the DOC extended his probation by six months without notice to him, and he shouldn’t have to pay the fees associated with those six months. The court of appeals has two problems with this claim: the record contains an order for the extension, apparently signed by him, and his probation ended in 1997.
COA reverses trial court’s hearsay ruling but affirms on harmless error
State v. Tyler J. Yost, 2018AP2251-CR, 9/18/19, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs)
Loose lips sink ships. They can also land you in jail for another year. That’s what happened to Yost when he and other inmates started bad mouthing their probation agent while chilling in the common area of the Waukesha County Jail. Yost allegedly called his agent a “bitch” and said that when he got out he was going to “crimp her brake lines,” and he didn’t care if her kids or family were in the car.
COA grants reconsideration, reverses in part due to illegality of sentence
State v. Larry C. Lokken, 2017AP2087-CR, 9/17/19, District 3 (unpublished), case activity (including briefs)
Lokken, a long-time Eau Claire County Treasurer, pled “no contest” to 3 counts of misconduct in office and 5 counts of theft in a business setting for stealing $625,758.22 from taxpayers. The circuit court ordered $681,846.92 in restitution and imposed an unusual condition of probation on one of the counts: if Lokken failed to pay restitution in 4 1/2 years, the 10-year probation period on Count 2 would be revoked.
COA – conviction for carrying a concealed gun in a car constitutionally sound
State v. Taurus Donnell Renfro, 2019AP193, 9/17/19, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)
Renfro was a passenger in a car stopped by the police. He was riding from his old residence to his parents’ house–he was moving in with them. When asked, he told the officers that he was carrying a gun in his pocket, and that he didn’t have a concealed-carry permit. A jury convicted him of violating Wis. Stat. § 941.23.
Federal District court says, contra SCOW, that there’s no “clearly stronger” element to an appellate IAC claim
Walker v. Pollard, 18C0147, Eastern District of Wisconsin, 9/4/19
Montgomery Walker is a pro se habeas petitioner who alleges that his postconviction/appellate counsel should have raised a claim of juror bias. In an order granting Walker an evidentiary hearing, the U.S. District Court holds that our supreme court was wrong, in State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, to say an appellate lawyer can’t be ineffective for failing to raise a claim unless that claim is “clearly stronger” that claims the lawyer did raise. The decision explains that SCOW misread Smith v. Robbins, 528 U.S. 259 (2000), as imposing such a rule.
On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].
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.