On Point

State v. Michael K. Fermanich, 2023 WI 48, 6/14/23, reversing a per curiam court of appeals decision; case activity (including briefs)

The key takeaway here is that five justices reaffirm and apply State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, and hold that Fermanich is entitled to 433 days sentence credit for time he spent in custody in connection with Oneida County charges that were dismissed and read-in at his Langlade County sentencing. (Opinion, ¶2). A concurrence by Justice Dallet is worth reading as a preemptive response to the dissent’s answer to the question for which the court granted review: whether State v. Tuescher should be reexamined and limited to the unique circumstances present there. A dissent by Chief Justice Ziegler and R.G. Bradley would have overruled Floyd, denied Fermanich credit under Tuescher, and required him to return to custody for an additional 433 days. (See Op., ¶19, Dallet, concurring).

Kenosha County Division of Child and Family Services v. D.R.-R., 2022AP1812, 06/01/23, District 2 (1-judge opinion, ineligible for publication); case activity

In what should not be a shocking outcome, a mother’s failure to appear at a single pre-trial hearing is not “egregious” and does not support a default judgment on grounds.

State v. Wilson P. Anderson, 2023 WI 44, 6/2/23, summarily reversing an unpublished court of appeals decision; 2020AP819; case activity (including briefs)

As we’ve noted previously, the court of appeals (in the person of a single judge in District 1) decided this case shortly after the same court (by a three-judge panel of District 4) decided State v. Green, 2021 WI App 18, 396 Wis. 2d 658, 957 N.W.2d 583. Green reversed an order that a criminal defendant be involuntarily medicated to competency, relying on and fleshing out the factors established by Sell v. United States, 539 U.S. 166 (2003). In particular, Green required the state to file, for the court’s approval, an individualized treatment plan specifying medications and doses. (Green was then taken up by the supreme court, but its decision addressed other matters, leaving the court of appeals’ reading of Sell intact.) The D1 judge in Wilson’s case didn’t follow Green (or, as the state now concedes, Sell itself) and okayed a med order prepared by a psychologist with a generic recommendation that Wilson be medicated. The supreme court granted Wilson’s petition, and the state’s litigation position changed: it conceded in SCOW that it hadn’t met its burden under Sell. In briefing and argument, the only dispute between the parties was whether the testimony of a medical doctor is always necessary to satisfy Sell‘s requirements.

State v. Danny Arthur Wright, 2021AP1252-CR, District 3, 05/16/23 (not recommended for publication); case activity (including briefs)

The state charged Wright with first degree sexual assault with use of a dangerous weapon. The alleged dangerous weapon at issue was a ZAP STICK. Wright filed a motion in limine to bar the state from calling a Detective to offer expert opinion testimony under Wis. Stat. § 907.02(1) and Daubert. The circuit court permitted the testimony after the state cautioned that it would not ask the detective whether the ZAP STICK used in Wright’s case was a dangerous weapon under the relevant statute. The court of appeals affirms on essentially the same basis: the detective’s testimony was permissible “expositional” testimony under State v. Dobbs, 2020 WI 64, 392 Wis. 2d 505, 945 N.W.2d 609, and not subject to the heightened reliability standard for expert opinion testimony.

State v. Heather L. Westrich, 2022AP2001-CR, District 4, 05/25/23 (one-judge opinion, not eligible for publication); case activity (including briefs)

In State v. Lindell, 2001 WI 108, ¶¶42-43, 245 Wis. 2d 689, 629 N.W.2d 223, the court held a prospective juror to be objectively biased because she knew the victim for 20 years, her parents knew the victim for about 47 years, and she described the victim as a “close friend.” Apparently, a friend “back in the day” isn’t a close friend and doesn’t render a juror objectively biased. (Op., ¶¶14-15).

State v. R.A.M., 2023AP441, 6/6/23, District 1 (one-judge decision; ineligible for publication); petition for review granted 9/26/23; affirmed 6/25/24 case activity

R.A.M. was defaulted on grounds after she missed a single hearing. While the “hearing” was the fourth day of her TPR court trial, she had appeared at every prior hearing, including the first three days of trial.  As all too commonly happens, the circuit court determined that R.A.M.’s single non-appearance was “egregious and in bad faith and without justification” without ever hearing from her, and held that she had waived her right to counsel under Wis. Stat. § 48.23(2)(b)3. The court of appeals notes the paucity of grounds for this decision in a footnote, but as R.A.M. doesn’t challenge the finding of egregiousness, the opinion doesn’t otherwise address it. It does address what came next: rather than waiting the two days the same statute requires to hold a dispositional hearing after a counsel waiver, the court held the hearing on the same day and terminated R.A.M.’s rights.

State v. Brandon B. Smiley, 2022AP1522-CR, District 4, 6/2/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The court of appeals rejects Smiley’s claim that the photo array shown to A.B., the complaining witness, was impermissibly suggestive and, therefore, her (not very confident) identification of him after looking at the array should have been suppressed.

Columbia County DHS v. K.D.K., 2022AP1835, 5/25/23, District 4 (1-judge opinion, ineligible for publication); case activity

K.D.K. challenged an order terminating his parental rights to C.A.K. on 3 grounds: (1) the judge was not properly assigned to preside over his case; (2) the circuit court refused to give a special verdict question asking whether it had been impossible for K.D.K. to meet the conditions for return set forth in the CHIPS dispositional; and (3) trial counsel was ineffective in several respects. The court of appeals rejected all claims.

On May 31, 2023, the court of appeals ordered publication of the following criminal law related decisions:

State v. Corey T. Rector, 2023 WI 41, 5/23/23 affirming a case certified by the court of appeals, 2020AP1213; case activity (including briefs)

Rector pleaded to five counts of possessing child pornography in a single case. He’d never been convicted of anything before. The sentencing judge ordered that he be placed on the sex offender registry until 15 years after the end of his sentence or supervision. The Department of Corrections then wrote the judge to say that, in its view, any two or more convictions of registry-eligible sex offenses trigger mandatory registration for life. The judge stuck to his guns and reiterated the 15-year registry requirement. The state appealed, and the court of appeals certified the case. The state supreme court now holds, 4-3, that Rector is not required to register as a sex offender for the rest of his life.