On Point

State v. Ryan L. Schultz, 2017AP603-CR, 12/20/17, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs).

Schultz was convicted of operating a motor vehicle with a prohibited alcohol content 2nd offense. He sought suppression of his blood test results on the grounds that the warrant-issuing judge lacked probable cause, or alternatively, that Officer Halfmann’s application omitted facts that would have undermined a finding of probable cause. On appeal, Schultz lost both arguments.

Last term, ASPD Andy Hinkel argued an important community caretaker issue that has divided state and federal courts to the Wisconsin Supreme Court. See State v. Asboth, 2015AP2051-CR. The State prevailed but perhaps only temporarily. Today the defense gained traction when SCOTUSblog featured Asboth’s petition for writ of certiorari as its Petition of the Day. Note that Asboth now has four sets of lawyers, including the SPD. Good luck, Team Asboth!!! Here is the question presented:

State v. Darrin K. Taylor, 2016AP1956 & 1957, 12/20/2017, District 2 (not recommended for publication); case activity (including briefs)

Taylor was convicted at trial of seventeen charges related to sexual assault of a child, S.F. On appeal he attacks only his conviction for causing mental harm to a child and the associated bail-jumping count. He argues the evidence was insufficient to show that S.F. suffered “mental harm” as it is defined in the statute, or that his post-assault contact with her was a substantial cause of said harm.

State v. Neil R. Hebert, 2016AP2168, 12/19/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

That’s the long and short of it. The circuit court held the officer, who had pulled Hebert over for speeding,  unlawfully extended the stop to investigate an OWI, but the court of appeals reverses. 

State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)

A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2). State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.

OLR v. Michael D. Petersen, 2016AP563-D, 12/15/17 (case activity )

I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction in my Outagamie County Wisconsin Case No. 15CM878. This disclosure is required as one of the conditions of my probation. Op. ¶34

Do we have your attention?

State v. Joseph T. Langlois, 2016AP1409-CR, petition for review of a published court of appeals decision granted 12/13/17; case activity (including briefs)

Issues (composed by On Point):

1. Was trial counsel ineffective for failing to object to the jury instructions for self defense and accident on the lesser included charge of homicide by negligent handling of a dangerous weapon?

2. Alternatively, is a new trial in the interest of justice warranted because the erroneous jury instructions on self defense and accident prevented the real controversy from being tried?

3. Did the erroneous instructions on self defense and accident violate due process by relieving the state of the burden to prove every element of the offense?

4. Was the evidence sufficient to support the jury’s verdict of guilty of homicide by negligent handling of a dangerous weapon?

Hughes v. United States, USSC No. 17-155, certiorari granted 12/8/12

Questions presented:

1. Whether this Court’s decision in Marks v. United States, 430 U.S. 188 (1977), means that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other.

2.Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman v. United States, 564 U.S. 522 (2011), or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.

3. Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.

State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)

Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.

State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)

In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.