On Point

State v. Altonio Laroy Chaney, 2011AP207-CR, District 1, 10/25/11

court of appeals decision (not recommended for publication); for Chaney: Angela Conrad Kachelski; case activity; prior appeal: 2008AP395-CR

Chaney’s argument that an eyewitness had recanted his version of having seen Chaney sexually assault the victim didn’t satisfy the new factor test for sentence modification: the sentencing court didn’t focus on the claim that Chaney,

Outagamie County v. Lorna G., 2011AP1662, District 3, 10/25/11

court of appeals decision (1-judge, not for publication); for Lorna G.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Although the trial court’s reference to “potential” for harm was an “imprecise summary” of the §51.20(1)(a)2b test for commitment (“substantial probability of physical harm”), this articulation “was not a deviation from the” correct standard. Moreover, the trial court’s finding that Lorna G.

court of appeals certification; for Bryan Stanley: Kristin M. Kerschensteiner; case activity

Open Records – Sealed Court File – NGI Condition Release Plan 

The appeal raises two significant issues at the intersection of Wisconsin’s Open Records Law and Mental Health Act, one procedural and one substantive. The procedural issue involves the proper mechanism to pursue an open records request for documents that have been placed under seal by the circuit court.  

State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); pro se; case activity

Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.

¶6        Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i).  The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,

State v. Steven C. Cushman, 2011AP957, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); for Cushman: John Smerlinksi; case activity

Probable cause to believe Cushman wasn’t wearing seat belt supported stop of his vehicle.

¶8        Wisconsin Stat. § 347.48 (2m)(gm) mandates seat belt use when operating a motor vehicle equipped with seat belts.[3]  In 2009, this statute was amended to remove language that had previously prohibited a law enforcement officer from stopping a vehicle based solely on the failure to wear a seat belt.  

State v. Christopher A. Anderson, 2011AP124-CR, District 2, 10/19/11

court of appeals decision (1-judge, not for publication); for Anderson: Anthony J. Jurek; case activity

¶1        In this case, Christopher A. Anderson was arrested for disorderly conduct while at a hospital.  He contends that because police had no probable cause to take him from his home and bring him to the hospital, his seizure was illegal and, therefore,

court of appeals publication orders, 10/19/11

On Point posts from this list:

2011 WI App 142 State v. James T. Kettner

State v. Scott R. Long, 2011 WI App 146 (recommended for publication); for Long: Jeff T. Wilson; case activity

DNA surcharge, conditioned on Long not having previously provided sample or having paid surcharge, upheld as proper exercise of discretion:

¶8        Here, the circuit court ordered the DNA sample contingent on whether one had previously been provided.  If the sample had not previously been provided, the circuit court reasoned that the DNA surcharge was appropriate because “it would be for a sample provided in connection with this case.”  This explanation is consistent with the rationale of the circuit court which we affirmed in Jones.  

State v. Omark D. Ward, 2011 WI App 151 (recommended for publication); for Ward: Mary Scholle, SPD, Milwaukee Appellate; case activity

Ineffective Assistance of Counsel – DNA Search Warrant 

Court commissioner’s order that Ward provide DNA sample violated “oath or affirmation” requirement for warrants:

¶10      Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here,

State v. Jeffrey S. Firebaugh, 2011 WI App 154 (recommended for publication); pro se; case activity

Because the Wisconsin Sentencing Commission had created no guideline “applicable” to Firebaugh’s offense (homicide by intoxicated use of a motor vehicle), he isn’t entitled to resentencing on the basis of failure to “consider” a (non-existent) guideline.

¶12      At the time of Firebaugh’s sentencing, neither the CPSC nor the Commission had developed a sentencing guideline for homicide by intoxicated use of a motor vehicle.