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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.
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Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment
State v. Todd E. Peterson, 2008 WI App 140 For Peterson: Ralph Sczygelski Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice: ¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. … ¶10 […]
Defenses – Statute of Limitations, § 939.74 – Tolling: Procedure for Determining
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification For MacArthur: Alex Flynn Amicus: Robert R. Henak Issue/Holding: ¶50 Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at […]
OWI – Sufficiency of Evidence: “Operated” Vehicle on “Highway”
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08 For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.” Holding: ¶13 Wisconsin Stat. § 346.63(3)(b) […]
OWI — Gated Community Roadway, Open to Public Use, Support for Drunk Driving under § 346.61
State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08 For Tecza: Timothy P. Swatek Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61. Holding: […]
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164 For Kashney: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment). ¶1 […]
Due Process – Identification Procedure – Showup ID: Probable Cause Specific to Purpose of ID Unncessary
State v. Jonathan W. Nawrocki, 2008 WI App 23 For Nawrocki: Scott D. Obernberger Issue/Holding: ¶2 The issue presented in this case is whether a showup identification is necessary, thus meeting the first test of admissibility under Dubose, when probable cause exists to justify an arrest of a suspect, but it does not exist on the […]
Due Process – Identifcation Procedure – In-Court ID as Untainted by Impermissible Showup
State v. Jonathan W. Nawrocki, 2008 WI App 23 For Nawrocki: Scott D. Obernberger Issue/Holding: ¶29 Having concluded that the showup identifications of Nawrocki were not necessary and therefore should have been suppressed, we next must address whether Albert’s and/or Gerhardt’s in-court identifications of Nawrocki were based on an independent source that was untainted by […]
Due Process – Restraints on Defendant in Courtroom – Sua Sponte Duty of Court to Investigate
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08 For Champlain: Martha K. Askins, SPD, Madison Appellate Issue/Holding: Once it became aware that the jail administrator was requiring that the defendant wear an armband taser device during the jury trial, the court, “the trial court had an affirmative, sua sponte duty to inquire […]
DNA Surcharge – Generally
State v. Ray Shawn Cherry, 2008 WI App 80 For Cherry: John T. Wasielewski Issue/Holding: ¶5 The statutes governing this issue are clear. If a trial court sentences a defendant to a felony involving a sex crime contrary to Wis. Stat. §§ 940.225, 948.02(1) or (2) 948.025, or 948.085, the trial court must order the defendant to pay […]
(Permissive) DNA Surcharge – Exercise of Discretion
State v. Ray Shawn Cherry, 2008 WI App 80 For Cherry: John T. Wasielewski Issue: Whether the sentencing court properly exercised discretion in imposing a DNA surcharge, where it misconstrued such action as mandatory rather than permissive and ignored the defendant’s prior such assessment. Holding: ¶9 We hold that in assessing whether to impose the DNA […]
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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.