On Point

State v. Arthur Allen Freiboth, 2018 WI App 46; case activity (including briefs)

In light of the Wisconsin Supreme Court’s May 2018 decisions in State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, and State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, the court of appeals now holds:

SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78.  If you are challenging the constitutionality of  a Wisconsin statute, you may want to take a careful look at this decision.  The justices appear to have split over the proper standard for judging the constitutionality of a statute.

State v. Terrance Lavone Egerson, 2018 WI App 49; case activity (including briefs)

Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.

State v. Demario D. Fleming, 2017AP1851-CR, District 1, 7/17/18 (not recommended for publication); case activity (including briefs)

Applying its recent decision in State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, the court of appeals rejects Fleming’s request for sentence credit for time he spent in custody on charges that were dismissed, but not read in, as part of a plea agreement.

Click here to read an interesting new Wisconsin Law Review comment that highlights ambiguities in our bail jumping statute and, using CCAP data, that recent (erroneous) court interpretations of the statute have led to an increase in bail jumping charges and sentences that are disproportionate to the charges crime, which place defendants at a disadvantage during plea negotiations.

State v. Misty Dawn Donough, 2017AP2000-CR, 7/10/18, District 1 (1-judge opinion; ineligible for publication), case activity (including briefs)

Deputy Moldenhauer saw Donough’s car disabled on an interstate and stopped to help. Moldenhauer repeatedly interacted with Donough, told her to get into the car, put it in neutral, and steer as the car was pushed on to a side street. Then she approached Donough for her license and insurance and saw her glassy eyes and detected the odor of alcohol.

State v. Zachary S. Friedlander, 2017AP1337, petition granted 7/10/2018; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

When, as here, an offender is mistakenly released from prison or jail, is the offender “in custody” under § 973.155(1) and Magnuson such that sentence credit should be granted for this time spent at liberty?

State v. Christopher John Kerr, 2018 WI 87, 7/6/18, reversing a circuit court order on bypass of the court of appeals; case activity (including briefs)

Wisconsin has recognized 2 grounds for applying the exclusionary rule to suppress evidence–to deter police misconduct and to ensure judicial integrity.  State v. Hess, 2010 WI 82, ¶¶20, 33, 327 Wis. 2d 524, 785 N.W.2d 568; State v. Eason, 2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625. The majority opinion in this case clarifies that a judge’s failure to follow the law when issuing a warrant cannot serve as an independent basis for the exclusionary rule. 

Petitioner v. Robert D. Evans, 2018 WI App 53; case activity (including briefs)

Evans, the respondent in a domestic abuse injunction proceeding, filed a substitution request on the day of the injunction hearing. To find a substitute judge in cases where substitution is requested so close to the hearing, the clerk uses an “email volunteer system”: An email is sent out to all the other judges to see if anyone is available to take over the case, and the first judge who is gets the case. (¶¶2-4). The court of appeals finds nothing prohibiting this method of assigning a substitute judge.

Monroe County DHS v. A.D., 2018AP825, District 4, 7/5/18 (one-judge decision; ineligible for publication); case activity

A.D. argues the circuit court shouldn’t have granted summary judgment as to the grounds of the petition to terminate her parental rights, which alleged continuing denial of periods of physical placement or visitation under § 48.415(4). She also challenges the constitutionality of § 48.415(4), both on its face and as applied to her. The court of appeals rejects both arguments.