On Point

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.

State v. B.W., 2022AP1329, review of an unpublished court of appeals decision granted 12/11/23; affirmed 6/27/24 case activity (briefs not available)

We don’t know the precise issue or issues presented, but the court of appeals’ decision suggests the state supreme court may be looking to un-fracture the fractured decision it rendered last term in State v. A.G. There, the circuit court had told a parent pleading to grounds in his TPR trial’s first phase that the state would have the burden in the second phase: that is, the state would have to show, by clear and convincing evidence, that termination was in the child’s best interest. Of the six justices who decided the case, four agreed there is no “burden”; rather the best-interest inquiry is the “polestar” (your guess is as good as ours on what sort of legal standard that encompasses). But these four could not agree on why the judge’s communication of this concededly incorrect standard didn’t mandate reversal; see our post for more on this.

R.G. v. J.J., 2023AP630, 1/9/24, District 3 (one-judge decision; ineligible for publication); case activity

The father here–whom the court calls “Jacob”–appeals the termination of his parental rights to his son, “Hank.” About a year and a half after Hank was born, Jacob went to prison for sexual assault of a different child. Around this time, Jacob and his ex-wife, “Rita,” stipulated in their divorce proceeding that Jacob would have no placement of Hank “until further order of the court.” About three and a half years later, Rita moved to terminate Jacob’s parental rights to Hank, alleging among other things that he’d been denied physical placement for more than a year under Wis. Stat. § 48.415(4). Jacob principally argues his agreement to forego placement while he was incarcerated doesn’t constitute a “denial,” so the statutory ground doesn’t apply.

State v. Wayne L. Timm, 2023AP351, 1/19/24, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

The police thought Timm might be responsible for a string of burglaries in the area, and so were looking out for his vehicle. When an officer spotted it one night, he pulled it over for going 31 in a 25. Shining his flashlight into the car, the officer saw the flat end of a tire iron such as could be used to pry things open; the iron was partly covered by a pair of jeans. He searched the vehicle and discovered more potentially “burglarious” tools. Based in part on this evidence, the police secured a GPS warrant for Timm’s car. The GPS tracking led to the discovery of evidence connecting him to specific burglaries. He moved to suppress the search of his car; when that was denied, he entered a plea.

State v. D.K., 2023AP292-293, 1/3/24, District I (one-judge decision; ineligible for publication); case activity

Despite a novel challenge as to the integrity of his plea, COA rejects “Daniel’s” arguments and affirms in this TPR appeal.

Waukesha County v. M.A.C., 2023AP533, petition for review of an unpublished court of appeals decision granted 12/11/23; reversed 7/5/24 case activity (including briefs)

Showing that SCOW’s interest in 51 appeals remains unabated, SCOW has accepted review of a big case that could result in the overturning of relatively recent precedent.

Douglas County v. M.L, 2022AP141, 12/28/23, District III (one-judge decision; ineligible for publication); case activity

Faced with a challenge to the circuit court’s competency in this protective placement appeal, COA holds that the appellant has forfeited his challenge and therefore affirms.