On Point

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se

Issue/Holding: State failure to argue, in the trial court, that Miller’s 974.06 motion was barred under Escalona-Naranjo waived the argument on appeal:

¶25   We conclude that application of the waiver rule is appropriate here, and therefore decline to address the State’s Escalona argument. Waiver is a rule of judicial administration,

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09
For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: By failing to object, defendant waived right to challenge judicial response to deliberating jury’s question, notwithstanding conceded unanimity problems in the response:

¶15   Nevertheless, we must agree with the State and hold that Becker waived his argument that the trial court erroneously exercised its discretion in answering the jury’s question in the manner it did.

State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district lost the value of these employee’s services during that time.

State v. Dhosi J. Ndina, 2009 WI 21, affirming 2007 WI App 268
For Ndina: Richard L. Kaiser

Issue/Holding:

¶43      If a defendant’s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors. [15]

 [15]  See Neder v.

State v. Lord L. Sturdivant, 2009 WI App 5, PFR filed 1/13/09
For Sturdivant: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: The initial sentence was “illegal” (because the court did not order sufficient time on extended supervision). The court granted defendant’s motion for resentencing (because of the illegality) and ordered an increase in supervision time (rather than reduction in confinement time, which would have accomplished the same purpose).

Dane County v. Stevenson L.J., 2009 WI App 84
For Stevenson L.J.: Ruth N. Westmont

Issue/Holding: Where Stevenson L.J. was detained on an “emergency statement” in one county (Brown), then transferred to another (Dane) before a probable cause hearing, a new emergency statement in Dane County did not establish a new 72-hour time limit for a probable cause hearing; competency over the proceeding was therefore lost:

¶12      Under the County’s argument,

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: “Infrequent references to annual re-evaluation” were not “sufficiently egregious to diminish the jury’s sense of responsibility for its verdict,” ¶¶20-24.

State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Testimony by a state’s expert to the effect that the only treatment program for psychopaths is at Sand Ridge did not require a new trial under the theory that it implicitly suggested commitment would be in the community’s and respondent’s best interest, ¶¶25-27 (court rejecting analogy to TPR procedure):

¶27      Wisconsin Stat.

State v. Jeremy D. Schladweiler, 2009 WI App 177
Pro se

Issue/Holding: DOC determination that an inmate isn’t eligible for CIP doesn’t constitute a new factor, notwithstanding the sentencing court’s determination that he is eligible.

¶11      Here, the trial court determined that Schladweiler was eligible for the CIP. … The sentencing court expressly indicated that participation in the CIP is a possibility to be ultimately determined by the department,

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Initial confinement totaling 36, and supervision of 17, years on sexual assault-related convictions wasn’t harsh and excessive:

¶48      Berggren’s sentence was not shocking, nor does it violate the judgment of reasonable people concerning what is right and proper under the circumstances. As the State points out,