On Point

State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.

State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR

The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.

State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)

Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.

Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster

A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when a police officer brought him before a judge and the judge found probable cause, committed him to jail, and set bail. In Milwaukee County, though, when a person is arrested without a warrant, judges routinely find probable cause, order detention, and set bail without seeing the person. As happened in Garcia’s case, an officer presents a judge a form–the CR-215–detailing the basis for suspecting the person; the judge can then check a box indicating that probable cause exists and can also set bond. The form is then distributed to, among others, the person being held.

On April 26, 2023, the court of appeals ordered publication of the following criminal law related decisions: Outagamie County v. L.X.D.-O., 2023 WI App 17 (counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings).

State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; affirmed, 2023 WI 68 case activity (including briefs, PFR, and response to PFR)

Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?

2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night in a high crime area, and when McBride made furtive movements in response to the officer’s spotlight?

State v. Isaac M. Gabler, 2022AP995-CR, District 2, 04/19/23 (one-judge opinion, ineligible for publication); case activity

Gabler pled no contest to violating a temporary restraining order (TRO). The circuit court placed him on probation and denied his request to be eligible for expungement after determining that the public should be able to see that Gabler violated a TRO. Thereafter, the circuit court granted Gabler’s § 806.07 motion to vacate the underlying harassment injunction in part because the TRO upon which it was based was invalid. Nevertheless, the court affirms the circuit court’s denial of Gabler’s postconviction motion to reopen his sentencing hearing on the issue of expungement because “there was a temporary restraining order in place and that order had been violated.” (Opinion, ¶17).

Brown County Department of Human Services v. S.K., 2023 WI App 27; case activity

A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of  child neglect resulting in death under but “as a party to the crime.” In a decision recommended for publication, the court of appeals reversed, but it rejected Stephanie’s argument that an “as a party to the crime” conviction can never qualify as a “serious felony.”

County of Grant v. Brad Alan Hochhausen, 2022AP1065, 4/13/23, District 4; (1-judge opinion, ineligible for publication); case activity (including briefs)

Hochhausen was convicted of speeding under §346.57(5). The circuit court imposed a 15-day suspension of Hochhausen’s operating privileges and a civil forfeiture pursuant to §343.30(1n). On appeal he argued that §343.30(1n) does not apply to convictions under §346.57(5), The court of appeals agreed and reversed.

State v. B.L., 2023AP8, 4/11/23, District 1 (1-judge opinion, ineligible for publication); case activity

“Barry” appealed an order terminating his parental rights to his 4 1/2-year-old daughter, Alice. He argued that the circuit court erred in admitting his criminal history during the grounds phase and erred in finding that it was in Alice’s best interest to terminate his rights. He lost on both issues.