On Point

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.

Outagamie County v. L.X.D.-O., 2023 WI App 17; case activity

Unfortunately, the court of appeals just turned Chapter 51 upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns the sufficiency of the evidence to support an involuntary medication order entered following an initial commitment. The court of appeals held that the doctor’s testimony was insufficient to support the order, but the doctor’s report, which was not moved into evidence, filled the gaps. It thus affirmed the med order.

State Public Defender attorneys and practice group coordinators sometimes field recurring questions about a point of law or a problem popping up in cases around the state. So we at On Point are experimenting with FAQ posts. From time to time we will post a FAQ along with an answer. If you encounter the issue […]

Mandatory Circuit Court Form CR-206 suggests that in a criminal case the circuit court may order involuntary medication for an incompetent defendant because he is dangerous. Is the form correct? No, under the current state of federal and Wisconsin law, a criminal court may not order the involuntary administration of antipsychotic for an incompetent defendant based on dangerousness.

State v. Debra L. Rippentrop & Steven E. Rippentrop, 2023 WI App 15; case activity (including briefs) 2022AP92-CR and 2022AP93-CR

The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.

USA v. Jeremy D. Banks, Appeal No. 22-1312 (7th Cir. Feb. 13, 2023).

Banks, a convicted felon, posted a video on Snapchat showing himself barbequing on his front porch with a gun nearby. Officers saw the video and raced to his house without a warrant. They walked onto Banks’s porch, caught him by surprise, engaged in a tussle, and arrested him in his front room where they spotted a box of ammunition and found a semi-automatic pistol in his pocket. The 7th Circuit held that police needed a warrant to enter the porch and house. The evidence should have been suppressed.

State v. Jeremy Joseph Hamilton, 2022AP1350-CR, District 2, 03/01/2023, (one-judge decision, ineligible for publication) case activity

Some readers of this decision might find themselves wondering why there’s no equivalent to baseball’s “tie goes to the runner” rule in criminal appeals. Others might find themselves researching the rule of lenity. However, it turns out there is no such rule in baseball, and the rule of lenity only assists defendants as a canon of statutory construction where a “grievous ambiguity” exists. See State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400; see also State v. Williams, 2002 WI 1, ¶19, 249 Wis. 2d 492, 637 N.W.2d 733 (rejecting a “close case” rule which would favor criminal defendants in breach of plea claims). As the court of appeals puts it: “…this is a very, very close case…[but] even close cases have to be decided one way or another…” (Opinion, ¶14).

Kenosha County v. A.C.S., 2022AP1821-1825, 2/15/23, District 2 (one judge decision; ineligible for publication); case activity

Here’s a fact pattern one hopes doesn’t come up too often. The county sought the termination of “Anna’s” parental rights to five children. It then moved for summary judgment on the grounds that she’d been convicted of a serious felony related to the death of another child. A hearing was set, but Anna’s counsel informed the court she’d be in trial in a homicide case. Expecting an adjournment–which both trial counsel and the court of appeals note is “common practice” in such a situation–the attorney told Anna the hearing would be put off. Counsel’s homicide trial then unexpectedly ended early, though she still had work to do to wrap it up. The TPR court apparently heard through the grapevine that the homicide trial was over. Without any successful contact–or much apparent effort to contact–Anna or her lawyer, the court held the scheduled hearing ex parte and, at the county’s request, granted summary judgment. Later, over Anna and her counsel’s protestations, the court terminated her rights.

Portage County DH & HS v. C.S., 2022AP1090, District 4, 02/23/2023, (one-judge decision, ineligible for publication) case activity

In what appears to be a first, the court of appeals addresses a grant of partial summary judgment against a parent specifically related to whether the county made a “reasonable effort” to provide services pursuant to a CHIPS order. See Wis. Stat. § 48.415(2)(a). One caveat being that the issue arises within the context of a postdisposition claim of ineffective assistance after trial counsel failed to file any response or affidavit opposing the county’s motion for summary judgment. Nevertheless, the court affirms the summary judgment order and holds that no genuine issue of material fact existed as to whether the county made a “reasonable effort” to provide services to C.S. that would have assisted him in meeting the conditions of return. (Opinion, ¶35).

On February 22, 2023, the court of appeals ordered publication of the following criminal law related decision: State v. Ayodeji J. Aderemi, 2023 WI App 8 (delay in upload of information on efiling system didn’t deprive circuit court of jurisdiction in criminal case)