On Point

State v. Antonio D. Brown, 2014 WI 69, 7/16/14, affirming a published court of appeals decision; majority opinion by Justice Bradley; case activity

Another defense victory!  Police stopped  Brown’s car due to an alleged violation of §347.13(1), which prohibits the operation of a vehicle at night unless its tail lamps are in “good working order.”  In a 4-3 decision, the majority holds that the police here misunderstood the statute, so the stop was illegal.  Furthermore, a stop based upon an officer’s mistake of law, is unlawful, and the results of the ensuing search must be suppressed. Justice Prosser, dissenting, predicts the majority’s interpretation will be “a bonanza for litigants seeking to challenge motor vehicle stops.” ¶79.

Kenosha County v. Vermetrias W., 2014AP861-FT, District 2, 7/16/14 (one-judge decision; ineligible for publication); case activity

Vermetrias had been the subject of a Chapter 51 commitment order, which Kenosha County sought to extend. Section 51.20(1)(a)2 provides than an individual is the proper subject for commitment if he or she poses a danger to himself or herself or to others.  Vermetrias presented evidence that there was not a “substantial likelihood” she would become dangerous if her commitment ended.  The trial court ruled against her.  The court of appeals affirmed, but complimented those involved in this matter:

State v. Penny S. Rosendahl, 2014AP349-CR, District 2 (1-judge opinion, inelgible for publication); case activity

¶8        When the evidence includes disputed testimony from the arresting officer and a video showing events leading up to the arrest, the circuit court’s findings of fact are subject to review under the clearly erroneous standard.  State v. Walli, 2011 WI App 86, ¶14, 334 Wis. 2d 402, 799 N.W.2d 898.  Here, the deputy’s testimony was that Rosendahl’s vehicle weaved within its lane and crossed the center line.  The circuit court found that the video showed that Rosendahl’s vehicle touched the center line on three occasions.  We have reviewed the record and conclude that the circuit court’s finding was not clearly erroneous.

State v. Erick O. Magett, 2014 WI 67, 7/16/14, affirming an unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

The circuit court erred when it prevented Magett from testifying on the issue of mental disease or defect during the responsibility phase of his NGI trial because the court mistakenly believed that Magett was not a competent witness regarding his own mental condition and that he was required to present expert testimony on the issue. The circuit court also erred in dismissing Magett’s NGI defense without hearing any testimony during the responsiblity phase. However, a majority of the supreme court holds these errors are harmless, so Magett does not get a new hearing on the issue of mental responsibility.

State v. Joseph J. Spaeth, 2014 WI 71, 7/16/14, on certification from the court of appeals, and reversing the circuit court’s dismissal order; majority opinion by Justice Gableman; case activity

A necessary predicate of a commitment under ch. 980 is a conviction for a sexually violent offense. This case raises an unusual issue regarding predicate convictions: Can the state continue to prosecute a ch. 980 proceeding if the predicate conviction that was alleged in the petition is vacated and dismissed after the petition is filed? The supreme court answers “yes,” holding that the sufficiency of a ch. 980 petition is to be assessed as of the time it is filed, and at the time the petition in this case was filed there was a valid conviction for the predicate offense.

State v. Hatem M. Shata, 2013AP1437-CR, District 1, 7/15/14 (not recommended for publication), petition for review granted, 12/18/14, reversed, 2015 WI 74; case activity

Trial counsel was ineffective for failing to inform Shata, an Egyptian foreign national, that pleading guilty to possession of more than 1,000 but less than 2,500 grams of THC with intent to deliver would result in his deportation.

State v. Clayton W. Williams, 2014 WI 64, 7/15/14, reversing a published court of appeals decision; majority opinion by Justice Prosser; case activity

This opinion addresses § 346.65(2)(am)6. as it applied to OWI 7th, 8th, and 9th offenses committed between July 1, 2010, when the statute first took effect, and April 10, 2014, when it was amended by 2014 Wis. Act 224. During that time period, the statute provided that the offense was a Class G felony, and that “[t]he confinement portion of a bifurcated sentence imposed on the person under [§] 973.01 shall be not less than 3 years.” The supreme court concludes this language is ambiguous because it could be read either to require a court to impose a bifurcated sentence or, instead, to permit a court to order probation with or without imposition of a bifurcated sentence, but that the legislative history makes it clear the language requires courts to impose a bifurcated sentence with a mandatory minimum three-year period of initial confinement.

State v. Luis M. Rocha-Mayo, 2014 WI 57, affirming an unpublished court of appeals decision; 7/11/14; majority opinion by Justice Crooks; case activity

Why tackle thorny legal issues surrounding Wis. Stat. §343.303’s prohibition against the use of PBTs at OWI trials when you can decide the case on harmless error grounds?  In this case, the PBT was ordered and administered by ER staff, not law enforcement. SCOW gets to pick and choose its cases. So when it grants review, the parties, their lawyers, the lower courts, and the bar hope the court will decide the legal issues, not re-review the evidence presented to the jury.  This fractured decision deserves a close look in order to understand what has and has not been decided about the use of PBTs in OWI trials.

State v. William F. Bokenyi, 2014 WI 61, 7/11/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Ziegler; case activity

In a decision that plows no new legal ground, a divided supreme court holds that a prosecutor’s remarks at sentencing did not breach the plea agreement, but were instead within the proper bounds of argument in support of a permitted recommendation for imprisonment. Because the prosecutor didn’t breach the plea agreement, the court doesn’t decide the primary issue presented for review: Whether the court should overrule State v. Sprang, 2004 WI App 121, ¶29, 274 Wis. 2d 784, 683 N.W.2d 522, which held that if defense counsel does not consult with the defendant when foregoing an objection to a breach of the plea agreement, counsel performs deficiently because that is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.”

State v. Jimothy A. Jenkins, 2014 WI 59, 7/11/14, review of an per curiam court of appeals decision; majority opinion by C.J. Abrahamson; case activity

This is a very nice victory for the defense.  It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel.  And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial.  After all, witness credibility is for the jury to decide.