On Point

Mike Tobin guest posts on State v. Lewis O. Floyd, Jr., 2017 WI 78, 7/7/17, affirming a published court of appeals opinion, 371 Wis. 2d 404; case activity (including briefs)

The majority opinion affirms the rulings of the lower courts that the defendant voluntarily consented to a frisk of his person following a traffic stop. The majority reached its decision without discussing the reasonableness of the officer’s suspicion of criminal activity-an issue emphasized in the dissenting opinion and previously analyzed by the court of appeals.

State v. Navdeep S. Brar, 2017 WI 73, 7/6/17,  affirming an unpublished court of appeals opinion, 2015AP1261-CR; case activity (including briefs)

By obtaining a driver’s license or operating a vehicle in Wisconsin do we automatically give the government consent to draw our blood without a warrant? A nose count reveals the answer remains “maybe.”

State v. Kenneth M. Asboth, Jr., 2017 WI 76, 7/6/2017, affirming an unpublished court of appeals decision; case activity (including briefs)

This case presented an issue that has divided federal and state appellate courts: does Colorado v. Bertine, 479 U.S. 367 (1987), permit “community caretaker”-type vehicle impoundments only when the police act accord to “standard criteria”? The majority in this case joins the “no” camp; the dissent says the majority has “buck[ed] the nationwide trend” and expanded the community caretaker doctrine into a “pretext to engage in unconstitutional searches” for evidence of crime.

State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)

A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.

State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)

The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.

State v. Marcus L. Pantoja, 2016AP1289, 7/05/17, District 1 (not recommended for publication); case activity (including briefs)

Police raided the apartment where Pantoja was living with his girlfriend; he claims on appeal that there was neither probable cause for the warrant nor reasonable suspicion of danger justifying its no-knock authorization, which turned up drugs and guns. The court of appeals disagrees and affirms.

State v. Java I. Orr, 2016AP2009, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity (including briefs)

Orr raises and loses 3 issues relating to the sentence credit that he received in this case. He argues that (1) he should have been allowed withdraw his plea because trial counsel gave him incorrect infromation regarding the sentence credit he would receive; (2) the actual amount of sentence credit he received is a new factor warranting modification of his sentence; and (3) the trial court sentenced based on inaccurate sentence credit information.

State v. James D. Carter, 2016AP1054-CR, District 1, 7/5/17 (not recommended for publication); case activity (including briefs)

Carter was charged in a 20-count information with various crimes, most of them involving theft and forgery arising out of a scam Carter perpetrated against multiple victims using the same basic modus operandi in October and November. But he was also charged with a burglary in June, which wasn’t part of the scam and looked nothing like the acts committed during the scam. (Pages 3-5). [NB: We’re citing to pages rather than paragraphs because on pages 6-7 and 12-15 the paragraph numbering is messed up.] The court of appeals rejects his argument that the burglary charge was improperly joined to the other charges.

State v. S.D., 2016AP1701-1702, 7/5/17, District 1, (1-judge opinion, ineligible for publication); case activity

This TPR appeal raises a number of interesting issues ranging from a Daubert challenge to the State’s psychologist and “parenting capacity assessment” to an ineffective assistance of counsel claim for failure to raise an “unconstitutional as applied” challenge to the standard jury instruction on “failure to assume parental responsibility.”

State v. M.G., 2016AP1197, District 1, 7/5/16 (one-judge decision; ineligible for publication); case activity

M.G. moved to withdraw his no contest plea to the petition to terminate his parental rights based on CHIPS grounds. He alleged the plea colloquy was deficient regarding his waiver of the right to trial because his lawyer and the judge referred to his having a “second” trial regarding disposition, and that he was confused by these statements. (¶15). The court of appeals finds no deficiency in the plea colloquy and therefore no basis for plea withdrawal.