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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Federal Sentence Enhancer, Armed Career Criminal Act – “Violent Felony”
Marcus Sykes v. U.S., USSC No. 09-11311, 6/9/11
It is a federal crime for a convicted felon to be in unlawful possession of a firearm. 18 U. S. C. §922(g)(1). The ordinary maximum sentence for that crime is 10 years of imprisonment. §924(a)(2). If, however, when the unlawful possession occurred, the felon had three previous convictions for a violent felony or serious drug offense, the punishment is increased to a minimum term of 15 years.
Delinquency – Possession of Non-Narcotic Controlled Substance (Adderall)
State v. Anthony M. S., 2010AP1669, District 4, 6/9/11
court of appeals decision (1-judge, not for publication); for Anthony M.S.: Shelley Fite, SPD, Madison Appellate; case activity
The State sought to prove that the pills Anthony M.S. possessed were a non-narcotic controlled substance (Adderall), § 961.41(3g), through the testimony of the Osseo Police Chief that the website Drugs.com established the pills’ identity. The trial court found Anthony M.S.
TPR – Testimony in Support of Petition, § 48.422(3)
Dane Co. DHS v. Jennifer F., 2011AP530, District 4, 6/9/11
court of appeals decision (1-judge, not for publication); for Jennifer F.: Paul G. LaZotte, SPD, Madison Appellate; case activity
Although the trial court erred in not taking testimony in support of no-contest pleas to the TPR petition as required by § 48.422(3) (see Waukesha County v. Steven H., 2000 WI 28, ¶56, 233 Wis.
OWI – Second or Subsequent Offense, Out-of-State Conviction
State v. Francis A. Malsbury, 2010AP3112-CR, District 2, 6/8/11
court of appeals decision (1-judge, not for publication); for Malsbury: Andrew R. Walter; case activity
Prior conviction, in Washington state in 1999 for reckless driving amended from driving under the influence, qualified as a prior OWI and therefore subjected Malsbury to criminal prosecution.
¶7 We hold that Malsbury’s Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin’s accelerated OWI penalty structure.
TPR – “Bonding Expert”; Dispositional Phase Adjournment
State v. Henry W., 2011AP693, District 1, 6/7/11
court of appeals decision (1-judge, not for publication); for Henry W.: Jane S. Earle; case activity
Testimony of a “bonding expert” as to how the child’s view of her father would make it difficult for him to meet conditions of return, was relevant and admissible in the grounds phase, ¶¶5-7, 10.
Trial court’s refusal to grant adjournment of dispositional phase so that father could secure his own bonding expert,
OWI – Blood Test Admissibility
County of Brown v. Eric J. Schroeder, 2010AP2967, District 3, 6/7/11
court of appeals decision (1-judge, not for publication); for Schroeder: Dennis M. Melowski, Dennis M. Melowski; case activity
Following OWI arrest and blood test result over the limit, Schoeder’s license was administratively suspended. The police, however, failed to provide him with the form explaining the suspension review process, contrary to § 343.305(8)(am). Schroeder argues that this omission causes a loss of presumptive reliability of the blood test (which allows admission into evidence without expert testimony).
A Plague O’ Both Your Houses
Estate of Brianna Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101
court of appeals decision (recommended for publication); case activity
¶24 n. 7:
On page 36 of its brief responding to Excel’s main appellate brief, E&B asserts: “[n]ot a single non-Kriefall [Pierringer] settlement agreement” is in the Record. That is not true, as Excel’s reply brief points out.
Search & Seizure: Consent to Search: Co-Occupant – Warrantless Entry: Probable Cause & Exigent Circumstances
State v. Deundra R. Lathan, 2011 WI App 104 (recommended for publication); for Lathan: George S. Tauscheck; case activity
Consent to Search, Co-Occupant
Consent to search premises given by one occupant overrides refusal to consent by co-occupant when neither is the subject of the search or ensuing arrest (resolving question expressly held open by Georgia v. Randolph, 547 U.S. 103, 120 n.
Federal Sentencing Enhancement, Armed Career Criminal Act – Construction
McNeil v. U.S., USSC No. 10-5258, 6/6/11
Under the Armed Career Criminal Act (ACCA), a prior state drug-trafficking conviction is for a “serious drug offense” if “a maximum term of imprisonment of ten years or more is prescribed by law” for the offense. 18 U. S. C. §924(e)(2)(A)(ii). The question in this case concerns how a federal court should determine the maximum sentence for a prior state drug offense for ACCA purposes.
Luis Mariano Martinez v. Ryan, USSC No. 10-1001, cert granted 6/6/11
Decision below: Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010)
Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first postconviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.
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On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.