On Point

State v. Henry E. Routon, 2007 WI App 178, PFR filed 
For Routon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:  Evidence of conspiracy to manufacture controlled substance is sufficient, notwithstanding that the psilocybe spores that defendant sold were themselves legal, given “abundant evidence from which it is reasonable to infer that Routon marketed the psilocybe spores to persons who wanted to use them for the illegal purpose of growing mushrooms and that this was the predominant part of the business,” ¶30.

State v. Charles E. Dukes, 2007 WI App 175
For Dukes: Robert N. Meyeroff

Issue/Holding:

¶22      Dukes contends that this evidence is insufficient because there was “no physical evidence linking [him] to the drug house and the drugs in the drug house,” because neither his fingerprints nor DNA were on any of the items recovered. He claims he did not live in the apartment, insisting that the evidence shows only that he was found sleeping on the floor where an overnight guest might sleep,

State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶2    … Because the State charged Slagle with keeping or maintaining a “vehicle” used for “keeping” cocaine, the State needed to prove the following three elements:

1.         Slagle kept or maintained a vehicle.

2.         Slagle’s vehicle was used for keeping cocaine. “Keeping” requires that the cocaine be kept for the purpose of warehousing or storage for ultimate manufacture or delivery.

State v. Wayne Charles Slagle, 2007 WI App 117
For Slagle: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶7   The interpretation of the statutory term “keeping” as “warehousing or storage for ultimate manufacture or delivery” comes from State v. Brooks, 124 Wis. 2d 349, 354-55, 369 N.W.2d 183 (Ct. App. 1985). Neither party challenges this interpretation of the statute. [5] Furthermore, Slagle does not dispute that the evidence shows the cocaine in his truck was “for ultimate manufacture or delivery.” The only dispute here is whether the trial evidence shows the cocaine was being “warehoused” or “stored” in Slagle’s truck.

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: “A claim of innocence, of course, is not sufficient as a stand-alone reason to permit a plea withdrawal even before sentencing. State v. Harvey, 2006 WI App 26, ¶23, 289 Wis. 2d 222, 239, 710 N.W.2d 482, 490 (‘An assertion of innocence,

State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether Jenkins’ claim that he (wrongly) thought he would be guaranteed an opportunity to work with law enforcement in return for potential sentencing benefit was a fair and just reason to allow pre-sentencing plea withdrawal.

Holding:

¶71      First,

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: Unrefuted indications of the child-complainant’s changed recollection of the details and reluctance to testify, ¶¶8-9, established “substantial prejudice” so as to defeat a pre-sentencing motion to withdraw plea:

¶16      A defendant seeking to withdraw a guilty plea before imposition of sentence must establish a fair and just reason and also “must rebut evidence of substantial prejudice to the State.” State v.

State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:

¶27      A Bangert Motion. A defendant may invoke Bangert only by alleging that the circuit court failed to fulfill its plea colloquy duties. [16] A Bangert motion warrants an evidentiary hearing if (1) the motion makes “aprima facie showing that [the] plea was accepted without the trial court’s conformance with [Wis.

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Bangert procedure applies to challenge to failure to establish adequate factual basis where the facts are disputed:

¶50      In the present case, however, the facts are in dispute precisely because the circuit court failed to conduct a sufficient inquiry into the factual basis of the offense charged.

State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
For McGuire: Timothy A. Provis

Issue: Whether a promissory note is a “security” within the meaning of § 551.02(13(a).

Holding: The 4-factor test of In Reves v. Ernst & Young, 494 U.S. 56, 66-67 (1990) applies: “1) the motivations of a reasonable seller and buyer; (2) the note’s ‘plan of distribution’;