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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.

State v. Dakota A.K., 2008AP2667, District II, 3/24/2010

court of appeals decision (1-judge; not for publication); Resp. Br.

Delinquency
Failure to receive discovery until, but not prior to, plea hearing didn’t render latter a nullity; and, under § 938.01(1), the court must liberally construe the juvenile justice code: “Dakota has presented no reason, nor do we see any reason, why his best interest would be served by dismissing the petition with prejudice.”

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SVP Supervised Release Hearing: Petitioner’s Clear and Convincing Burden of Proof – Sufficiency of Evidence

State v. Tory L. Rachel, 2010 WI App 60; for Rachel: Donald T. Lang, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.

SVP – Supervised Release Hearing: Burden of Proof on Petitioner

Under revisions to § 980.08 wrought by 2005 Wis. Act 434 (eff. date 8/1/06), the burden of proof has been shifted from the State (to prove unsuitability for supervised release) to the petitioner (to show suitability),

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State v. Kyle J. Graske, 2009AP1933-CR, District II, 3/24/2010

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed.

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State v. Benny O., 2008AP2393-CR, District I, 3/23/2010

court of appeals decision (1-judge; not for publication)

TPR
Plea to grounds upheld, in light of trial court credibility determinations at post-termination evidentiary hearing, against claim Benny didn’t understand State’s burden of proof, 2-stage nature of TPR, or finding of unfitness as necessary consequence of plea.

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Traffic Stop: Reasonable Suspicion

State v. Robert A. Tomaszewski, 2010 WI App 51; for Tomazewski: Devon M. Lee, SPD, Madison Appellate; Resp. Br.; Reply Br.

¶6 n. 3:

Tomaszewski argues this is not a case in which reasonable suspicion that he was violating a traffic law would justify the stop. In Tomaszewski’s view, a temporary detention may be justified by reasonable suspicion only where an officer cannot determine,

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Guilty Plea Waiver Rule: Detainer Act Claim

State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley

Interstate Detainer Act claim is waived by guilty plea:

¶3        A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court. 

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Joseph Smith v. McKee, 7th Circuit Appeal No. 09-1744, 3/16/10

7th Circuit court of appeals decision

Habeas – Procedural Bar
Smith defaulted one claim by failing to raise it “in a full round of appellate review” in state court (i.e., he failed to include the issue in his request for Illinois supreme court review). He is unable to overcome the resultant bar on habeas review, on a cause-and-prejudice analysis. Among other things, the claim (trial counsel was ineffective for failing to object to a witness ID instruction) would likely fail on the merits because counsel didn’t act in an objectively unreasonable manner by failing to object to a pattern instruction.

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Bruce N. Brown v. Watters, 7th Circuit Appeal No. 08-1171, 3/19/10

7th circuit court of appeals decision; habeas review of: Wis court of appeals decision, 03AP3252

Habeas – Supplement Record

… Although we generally decline to supplement the record on appeal with materials not before the district court, we have not applied this position categorically. See, e.g., Ruvalcaba v. Chandler, 416 F.3d 555, 562 n.2 (7th Cir. 2005) (in habeas case,

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Failure to Comply with Sex Offender Registration, § 301.45

State v. James W. Smith, 2010 WI 16, affirming 2009 WI App 16; for Smith: Shelley M. Fite, SPD, Madison Appellate

The § 301.45 reporting requirement applicable to any violation of false imprisonment of a minor not the defendant’s child is rationally related to a legitimate government interest in protecting the public, particularly children, ¶¶27-36.

Keep in mind that Smith challenged the statute as applied to him.

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State v. John A. Wood, 2010 WI 17

Wisconsin supreme court decision; below: certification; for Wood: Kristin E. Lehker; for amicus, Disability Rights Watch: Kristin Kerschensteiner; Supp. App. Br.Supp. Resp.Supp. Reply

Due Process Challenge to Statute

¶13      A party may challenge a law or government action as being unconstitutional on its face.  Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.” 

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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.