On Point

State v. Luis Calderon-Encarnacion, Jr., 2014AP2252-CR, 04/12/2016 (not recommended for publication); case activity (including briefs)

Calderon was found guilty at trial of shooting up the house of his child’s mother. The evidence against him included the fact that he was pulled over 20 minutes after the shooting in a vehicle matching an eyewitness description of the shooter’s, with a silver-and-black revolver containing five spent casings concealed in the fuse panel.

State v. Tony Phillip Rogers, 2015AP921-CR, 4/12/16, District 1 (not recommended for publication); case activity (including briefs)

Though the complainant in Rogers’s child sexual assault prosecution made statements to her mother about “hearing voices” and needing mental health assistance, trial counsel was not deficient for failing to move for an in camera review of her treatment records because he could not have made the materiality showing needed under State v. Shiffra, 175 Wis. 2d 600, 608-09, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, ¶¶32-34, 253 Wis. 2d 356, 646 N.W.2d 298.

State v. L.N.S., 2015AP1617, District 1, 4/12/16 (one-judge decision; ineligible for publication); case activity

The evidence regarding the mother’s interaction with her daughter over the daughter’s entire lifetime was sufficient to support the jury’s determination that the mother failed to assume parental responsibility.

State v. A.M.B., 2015AP1618, District 1, 4/12/16 (one-judge decision; ineligible for publication); case activity

Andy was incarcerated when his daughter Catie was born and he remained in custody throughout the subsequent CHIPS and TPR proceedings. He ultimately admitted to the continuing CHIPS ground for termination of his parental rights, but now claims his admission was invalid because he was not aware that, under Kenosha County Department of Human Services v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845, incarceration alone cannot be grounds to terminate parental rights. The court of appeals finds no flaws in his admission.

State v. J.J., 2016AP194 & 2016AP195, 4/12/2016, District 1 (one-judge decision; ineligible for publication); case activity

J.J., the father, appeals the termination of his rights to his two children, J.J. and A.J., challenging not the finding of unfitness but only the court’s determination that termination was in the best interest of each child.

Review of a published court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Is a defendant deprived of his constitutional right against self-incrimination and his rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I, § 8 of the Wisconsin Constitution by the admission at trial in the state’s case-in chief of his unwarned custodial statements made in response to law enforcement’s asking for a statement?

State v. Jimmie Lee Smith, 2016 WI 23, 4/7/16, reversing a published court of appeals decision, majority opinion by Roggensack, concurrence by Ziegler, dissent by Abrahamson (joined by A.W. Bradley); case activity (including briefs)

You can’t accuse the majority of mere error correction in this decision. Although the State never asked SCOW to rewrite the “clearly erroneous” standard of review and nobody briefed or orally argued the issue (see Ziegler’s concurrence and Abrahamson’s dissent), the majority seized the opportunity to make a tough standard even tougher. Unless SCOTUS steps in, it’s going to be virtually impossible to  challenge circuit court competency findings as well as other circuit court decisions governed by the “clearly erroneous” standard of review.

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification)

This appeal presents a single recurring issue: whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious suspect violate the Fourth Amendment to the United States Constitution. More specifically, the issue is whether the “implied consent,” deemed to have occurred before a defendant is a suspect, is voluntary consent for purposes of the consent exception to the Fourth Amendment’s warrant requirement.

On review of a court of appeals certification; case activity (including briefs)

Issue (from certification):

Does it violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution for the State to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system and/or testimony of a medical examiner basing his/her cause-of-death opinion in part on the information set forth in such a report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

Review of a published court of appeals decision; case activity (including briefs)

Issues:

In State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, this Court held that circuit courts may not consider an expunged record of conviction, but may consider the facts underlying an expunged record of conviction at sentencing. Did the circuit court violate Leitner when it considered at sentencing that Mr. Allen had an expunged conviction and served a term of probation?

Was trial counsel ineffective for failing to object to the references to Mr. Allen’s expunged conviction in the pre-sentence investigation and at sentencing?