On Point

State v. Lynne M. Shirikian, 2023 WI App 13; case activity (including briefs)

Shirikian pleaded to OWI as a fifth offense. Back in 2019, the legislature amended the statutes to create a both a presumptive and a mandatory minimum sentence for OWI 5th and OWI 6th. See 2019 Wis. Act 106; Wis. Stat. § 346.65(2)(am)5. The presumptive minimum requires at least 18 months of initial confinement, but the statute lets a court go lower if it finds doing so in the best interest of the community and not harmful to the public. The court of appeals now holds that even if a court decides to give less than 18 months IC, it’s still obligated to impose a bifurcated sentence. Since bifurcated sentences necessarily involve at least a year of IC, see Wis. Stat. § 973.01(2)(b), that year is the true mandatory minimum. Further, the court holds, a sentencing judge can’t avoid this minimum by imposing and staying a prison sentence and ordering of probation. Because the judge here did order probation, the court of appeals remands with directions that the lower court impose a legal sentence.

Barron County v. K.L., 2022AP502, District 3, 02/07/2023 (one-judge decision, ineligible for publication), case activity

K.L. (Katie) challenged the 2021 extension of her original 2013 Chapter 51  commitment on two grounds: (1) insufficient evidence of dangerousness and (2) the circuit court’s failure to “make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” See Langlade County v. D.J.W., 2020 WI App 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. The court affirms Katie’s recommitment after concluding the county presented “clear and convincing evidence” that Katie was dangerous under the fourth standard (see Wis. Stat. § 51.20(1)(a)2.d.), and  that the circuit court complied with D.J.W. when it “checked two boxes on its written order,” which indicated that Katie was dangerous under the third and fourth standards. (Opinion, ¶¶2, 12).

State v. Larry L. Jackson, 2023 WI 3, 01/20/23, affirming in part, reversing in part, and remanding a per curiam court of appeals decision; case activity (including briefs)

A unanimous supreme court holds that Jackson is entitled to an evidentiary hearing under State v. Machner on one of his three claims of ineffective assistance of counsel.

State v. Ayodeji J. Aderemi, 2023 WI App 8; case activity (including briefs)

This appeal concerns a problem many will encounter. An alleged attempt to e-file a document apparently failed. Here, the document was the State’s Information. Aderemi argued that the fumble caused the State to miss its filing deadline, so under §971.01(2) the circuit court had to dismiss the case without prejudice. In a split decision, recommended for publication, the majority (White and Brash) ruled for the State. The dissenter (Dugan) faults the majority for ignoring important parts of Wisconsin’s e-filing statute. He would reverse and remand for an evidentiary hearing.

State v. James P. Killian, 2020AP2012, review of a published court of appeals decision granted 1/20/23; case activity

Issues presented (from state’s PFR):

Has the State exposed Killian to multiple prosecutions for the same offense in violation of double-jeopardy principles?

Winnebago County v. D.J.S., 2022AP1281, District 2 (one-judge decision ineligible for publication), case activity

Accompanied by a familiar sounding caveat that “it certainly would have been better if the County had presented more evidence and the circuit court had been more detailed and specific in its oral determination,” the court of appeals rejects D.J.S.’s sufficiency of the evidence challenge to the extension of his Chapter 51 involuntary civil commitment. (Opinion, ¶8).

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity

Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.

On January 25, 2023, the court of appeals ordered the publication of the following criminal-law related decision: State v. Steven W. Bowers, 2023 WI App 4 (affirming suppression of evidence seized during warrantless search of defendant’s Dropbox account)

Brown County DHHS v. T.R., 2022AP1094, District 3, 1/20/23 (one-judge decision; ineligible for publication); case activity

In a TPR proceeding a motion for summary judgment may be filed any time before trial, as prescribed in § 48.297(1) and (2), and is not governed by the time limit for summary judgment motions prescribed in § 802.08(1).

Rusk County DHHS v. R.S., 2022AP1530, District 3, 1/20/23 (one-judge decision; ineligible for publication); case activity

R.S. (“Ruth”) argues that at the trial on the County’s petition to terminate her parental rights, the County Department of Health and Human Services didn’t prove it made reasonable efforts to provide the services ordered in the original CHIPS dispositional order. The court of appeals rejects the claim.