On Point

State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)

In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.

State v. Joshua J. Luther, 2016AP1879-CR, 5/3/18, District 4 (not recommended for publication); case activity (including briefs)

This is a pretrial interlocutory appeal. Luther is charged with causing injury by driving with a detectable amount of THC in his blood. He wants to present expert testimony that the levels of THC would not have impaired him at the time of the crash–he says he last smoked pot the night before. He argues this evidence can help him meet the statutory affirmative defense in § 940.25(2)(a), (the “even-if” defense) which requires a defendant to show the crash would have happened even if he was exercising “due care” and had no controlled substances in his blood. The court of appeals holds the evidence inadmissible on the record as it stands, but cautions the trial court that if facts emerge supporting the defense, that could change.

State v. Royce O. Bernard, 2017AP2162-CR, District 1, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)

After being charged with carrying a concealed weapon, Bernard challenged the Terry stop that led to the charge. His suppression motion was denied. Postconviction he argued trial counsel was ineffective because he failed in various ways to undermine the credibility of the officer who stopped Bernard. The court of appeals holds Bernard’s postconviction motion failed to allege sufficient facts to get a Machner hearing.

City of Eau Claire v. Debora Ann West, 2017AP1527, District 3, 5/22/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Section 346.675 provides that the owner of a vehicle is liable for a hit-and-run violation that his or her vehicle is involved in, regardless of whether the owner is operating the vehicle at the time of the violation, but also subject to certain defenses. One of the defenses, § 346.675(4)(b)2., allows the owner to avoid liability by providing the name and address of the person operating the vehicle at the time of the violation along with other information sufficient to provide probable cause that the owner wasn’t operating at the time of the violation. Contrary to the circuit court’s conclusion, the evidence in this case wasn’t sufficient to conclude that West established that defense.

State v. Keith A. Wall, 2017AP2367-CR, District 4, 5/17/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Wall sought the suppression of the results of the test of his blood, which showed he had a BAC of 0.178 after his arrest for OWI. He argues the blood was seized unlawfully because police didn’t have a warrant and they used excessive force to draw the blood. The court of appeals rejects both claims.

State v. Terrell Dawon Essex, 2017AP1509-CR, District 1, 5/15/18 (not recommended for publication); case activity (including briefs)

Essex was on trial for being a felon in possession of a firearm and first degree reckless homicide of a man named Dotson by use of a dangerous weapon. The circuit court allowed the state to present evidence that on a prior occasion Essex used the same firearm involved in Dotson’s shooting. The court of appeals holds the evidence was admissible.

As you might guess, parents in TPR appeals don’t fare well in the Wisconsin Supreme Court. This edition of SCOWstats digs deeper and looks at how individual justices have voted in these cases over the past 25 years. Click SCOWstats to find out more.

State v. Shaun M. Sanders, 2018 WI 51, 5/18/18, affirming a published court of appeals decision, 2017 WI App 22, case activity (including briefs)

The state can criminally punish a person for something he or she did as a small child.

State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity

Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.

State v. DeAnthony K. Muldrow, 2018 WI 52, 5/18/18, affirming a published court of appeals decision, 2017 WI App 47; case activity (including briefs)

A unanimous supreme court holds that lifetime GPS monitoring is not punishment, so a judge doesn’t have to advise a defendant that he or she is pleading to a crime that will require lifetime monitoring.