On Point

court of appeals decision; pro se; Resp. Br.

Sentence Modification – DNA Surcharge

¶2        Singleton was sentenced on July 24, 2002, and the circuit court ordered, as a condition of his bifurcated sentence, that Singleton provide a DNA sample and pay the applicable surcharge.[1] Singleton’s sole challenge is made via a motion to modify his sentence under Wis. Stat. § 973.19 (2007-08), and is addressed only to the adequacy of the court’s explanation for imposition of the surcharge under Cherry,

Rock Co. DHS v. Calvin M. M., No. 2010AP816, District IV, 6/24/10

court of appeals decision (1-judge; not for publication); for Calvin M.M.: Brian C. Findley

Admission of hearsay, describing an act of domestic violence was harmless:

¶7        There are two reasons why we conclude admitting this apparent hearsay evidence was harmless error. We first observe that one of the elements the County had to prove at trial was that Calvin had not met all of the conditions for return.

Issue: Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying the rule in other cases.

Docket: 09-996

• Opinion below (9th Circuit,

State v. Patrick M. Zurkowski, No. 2009AP929-CR, District III, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Zurkowski: Michael J. Fairchild; BiC; Resp.

1st-Degree Intentional Homicide – Sufficient Evidence, Intent

¶13      That Zurkowski killed June through a combination of repeated blows and cutting her tongue with a ceramic object he crammed in her mouth, rather than by killing her via a single fatal wound,

State v. Charles D. Brown, No. 2009AP2093-CR, District I, 6/23/10

court of appeals decision (3-judge, not recommended for publication); for Brown: Martin J. Pruhs; BiC; Resp.

Under State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992), a court may not sua sponte order withdrawal of a guilty plea, absent fraud or intentional withholding of material information.

City of Chippewa Falls v. Kenneth C. Hein, No. 09AP2729, District III, 6/23/10

court of appeals decision (1-judge; not for publication); for Hein: Paul D. Polacek; BiC; (Resp. not on-line); Reply

Stop of Hein’s vehicle was supported by “reports of suspicious activity about 2:30 a.m., the nature of which was unknown:”

¶10      … A prudent officer proceeding into such ambiguity and uncertainty will ensure the availability of witnesses or suspects and freeze the scene in order to further investigate:

[A] law enforcement officer will be confronted with many situations in which it seems necessary to acquire some further information from or about a person whose name he does not know,

Village of Whitefish Bay v. David W. Czirr, No. 2010AP92, District I, 6/22/10

court of appeals decision (1-judge; not for publication); for Czirr: Rex Anderegg; BiC; Resp.; Reply

Driving across median, even for very brief period of time, establishes probable cause to arrest for traffic offense:

¶14      Next, Czirr does not specifically argue that momentarily being on top of the median cannot constitute a violation of WIS.

John Ebert v. Gaetz, 7th Circuit No. 09-1627, 6/23/10

7th circuit court of appeals decision

When the ineffective assistance claim is based on counsel’s failure to file a motion to suppress, as it is here, the defendant must also prove “that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v.

Magwood v. Patterson, USSC No. 09-158, 6/24/10

After a defendant has been resentenced in state court pursuant to relief granted on a federal habeas petition, a second federal habeas petition challenging the new sentence will be treated as a first petition (vs. a “2nd or successive” petition), even if raising grounds that could have been raised in the original petition.

We have described the phrase “second or successive” as a “term of art.” Id.,

State v. Melvin G. Walton, No. 2009AP001304-CR, District I, 6/22/10

court of appeals decision (3-judge, not recommended for publication); for Walton: Byron C. Lichstein; BiC; Resp.; Reply

Prosecutorial Failure to Disclose Evidence

¶28     The State has two separate evidence-disclosure responsibilities: a statutory responsibility imposed by WIS. STAT. § 971.23 and a constitutional responsibility imposed by Brady v. Maryland,