On Point

State v. Gary M. Hemmingway, 2012 WI App 133; case activity

Stalking,  § 940.32(2m)(a), which previously survived overbreadth and vagueness challenges based on rights to travel and equal protection, State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), now withstands a free-speech challenge: The statute isn’t a facially overbroad regulation of protected speech, in that the first amendment doesn’t immunize intentional conduct aimed at causing serious distress or fear of bodily harm.

State v. Tyler H., 2012AP914, District 3, 11/6/12,  court of appeals decision (1-judge, ineligible for publication); case activity

Evidence held sufficient to support delinquency adjudication, where juvenile called mother “a fucking whore” after she struck him during a family “squabble” in their home.

¶9        We conclude Tyler’s conduct was of the type that tends to cause or provoke a disturbance.  First, we reject Tyler’s argument that his language could not provoke a disturbance because a disturbance was already occurring.

State v. William F. Vollbrecht, 2012AP49-CR, District 3, 11/6/12,  court of appeals decision (not recommended for publication); case activity

Evidence held sufficient to sustain conviction for first-degree intentional homicide. The jury was entitled to reject Vollbrecht’s testimony that the shot he fired into his ex-girlfriend’s new boyfriend was accidental.

¶12      Vollbrecht’s argument fails on two fronts.  First, consistent with Poellinger, the jury was permitted to accept Clark’s revised version of events and reject Vollbrecht’s tenuous explanation of what occurred at the time of the shooting.  

Question Presented (from cert pet):

In federal habeas proceedings, undersigned counsel raised for the first time a claim under Wiggins v. Smith, 539 U.S. 510 (2003), that trial counsel were ineffective for failing to investigate the extraordinary mitigating evidence in Mr. Trevino’s life. The federal proceeding was stayed to allow exhaustion, but the Texas Court of Criminal Appeals dismissed Mr. Trevino’s Wiggins claim under state abuse of the writ rules.

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  

State v. Samuel J. Jacobs, 2012AP728-CR, District 2,10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Frisk resulting in seizure of marijuana upheld where detective, investigating reported drug activity, stopped a vehicle on the pretense a headlight was out and, after questioning the driver (Jacobs) for several minutes, discerned that Jacobs had become unusually nervous in that he began “moving from one foot to the other foot,”

Winnebago County v. Anastasia G. Christenson, 2012AP1189, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Probable Cause – PBT, § 343.303

¶11      At the time Putzer administered the PBT to Christenson, he was aware that she had driven her car into a ditch, smelled of “intoxicating beverages” around midnight on Saturday night/Sunday morning (a day and time that increases suspicion of alcohol consumption),

State v. Raenold Quiles, 2012AP1282, District 2, 10/31/12

court of appeals decision (1-judge, ineligible for publication); case activity

Given the trial court’s finding of fact that Quiles was merely “wandering over to and touching the fog line for a bit,” with otherwise “smooth, normal driving,” the traffic stop for crossing the fog line wasn’t supported.

¶9        Here, the evidence conflicted as to how many times Quiles crossed the fog line.  

court of appeals publication orders, 10/31/12

On Point posts:

2012 WI App 110 State v. Jose O. Gonzalez-Villarreal

2012 WI App 112 State v. Carl Rissley

2012 WI App 113 Scott E. Schmidt

2012 WI App 114 Christopher J. Felton

2012 WI App 117 Chintan V. Patel v. State of Wisconsin