On Point

State v. Joshua L. Thering, 2023AP1253, 1/23/24, District 4 (1-judge decision, not eligible for publication); case activity (including briefs)

While the court of appeals agrees the facts in Thering’s case are “similar in significant respects” to the SCOW-approved police encounter in County of Grant v. Vogt, 2014 WI 76, 356 Wis. 2d 343, 850 N.W.2d 253, the court concludes that the totality of the circumstances in Thering’s case “involved a meaningfully greater show of authority by police than in Vogt,” which was characterized as a “close case.” Therefore, the court reverses the circuit court’s order denying Thering’s motion to suppress and his judgment of conviction for OWI 2nd.

State v. Troy Allen Shaw, 2023AP697, 1/24/24, District II (1-judge decision; ineligible for publication); case activity (including briefs)

Shaw’s challenge to improper closing argument persuades COA that the prosecutor erred, but fails to overcome the imposing tests for plain and harmless error.

State v. Matthew Robert Mayotte, 2022AP1695, 1/23/24, District 3 (not recommended for publication); case activity (including briefs)

Given the state of the postconviction record and COA’s narrow reading of precedent, Mayotte fails to establish he is entitled to plea withdrawal given his misunderstanding of the consequences of his Alford plea.

State v. Jacob Richard Beyer, 2022AP2051, 1/11/24, District 4 (not recommended for publication); case activity (including briefs)

Although Beyer labors mightily at conjuring up legal arguments for reversal, COA is uniformly unpersuaded and unimpressed by his arguments and affirms.

State v. Ashley Jean Campbell, 2020AP1813, 1/23/24, District 3 (recommended for publication); case activity

As a matter of first impression in Wisconsin, the court of appeals holds that regardless of whether the “instinct exception” exists, “the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle.” Op., ¶5.  More specifically, the court concludes that the canine “did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door.” As a result, the court reverses Campbell’s judgment of conviction and remands with directions to grant her motion to suppress.

Sheboygan County DHHS v. J.L., 2023AP1884, 1/3/24, District 2 (one-judge decision; ineligible for publication); case activity

In yet another appeal of the circuit court’s discretionary decision to terminate a parent’s rights, COA easily rejects J.L.’s invitation to reweigh the evidence.

State v. Theodore J. Polczynski, 2023AP900, 1/3/24, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

COA upholds the circuit court’s order barring Polczynski from owning a business or operating as a general contractor as conditions of probation by finding they are reasonable and appropriate under the facts of this case.

State v. Robert E. Hammersley, 2022AP263, 1/4/24, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

This pro se appeal fails due to the well-settled application of a procedural bar against successive litigation.

The rules remain the same–while we won’t bore our readers with the vagaries of federal sentencing procedure, we will try to bring your attention to persuasive authorities you might find useful or interesting. December featured a few such cases, including the rare defense loss that is still a must-read because it affirms the fundamental sanity of frequently abused and/or gaslit defense attorneys facing judicial intemperance including, as in this case, threats to impose contempt sanctions as punishment for zealous advocacy.

State v. Laquanda N. Strawder, 2022AP2112, 1/17/24, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court held that police lacked probable cause to arrest Strawder for OWI and suppressed the resulting evidence, including her breath test results. The state appealed, claiming the circuit court’s factual findings and analysis were so lacking the court of appeals should review the factual record ab initio. The court of appeals thinks the trial court did the proper analysis and made sufficient factual findings, but disagrees with its legal conclusion. In the facts as found by the trial court, the court of appeals sees probable cause to arrest, and thus reverses and remands for the prosecution to continue.