On Point

State v. Jonathan Owens, 2006 WI App 75, PFR filed 4/4/06
For Owens: Dianne M. Erickson

Issue: Whether the sentencing court’s initial denial of ERP eligibility, seemingly on the improper basis of the defendant’s age, was a proper exercise of discretion where on motion for reconsideration the court “stated that it had intended to refer to Owens’s age regarding his eligibility for the Challenge Incarceration Program only [and] then explained why it had denied Owens’s participation in the ERP and denied the motion for reconsideration.”

Holding:

¶9        Owens complains that even though the trial court set forth an explanation for its sentence,

State v. Gerald L. Lynch, Jr., 2006 WI App 231, PFR filed 11/6/06
For Lynch: David R. Karpe

Issue: Whether statutory ineligibility for Earned Release, § 973.01(3g), for homicide by intoxicated use violates equal protection given eligibility for driving while intoxicated but not causing death or great bodily harm.

Holding:

¶18      Applying this standard, we conclude there is a rational basis for not allowing persons convicted of crimes under Wis.

State v. David S. Stenklyft, 2005 WI 71, on bypass
For Stenklyft: Suzanne L. Hagopian, SPD, Madison Appellate

Issue/Holding: The prosecutorial veto written into the TIS sentence-adjustment provision, § 973.195, is unconstitutional:

¶83 … “[S]hall” is interpreted as directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under Wis.

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether “actual physical possession” of weapons is necessary to support forfeiture under § 968.20(1m)(b).

Holding:

¶9        Kueny argues that he effectively did not have possession of the firearms. He reminds us that he had had no contact with the weapons since putting them in storage years before,

State v. John L. Kueny, 2006 WI App 197, PFR filed 10/19/06
For Kueny: James R. Lucius

Issue: Whether the weapon must have been used in the crime of conviction in order to be subject to forfeiture.

Holding:

¶11      Kueny misreads the plain language and misses a nuance of the statute. Wisconsin Stat. § 968.20(1m)(b) forbids returning weapons to one who “committed” a crime involving their use;

State v. Joseph R. Luebeck, 2006 WI App 87, (State’s) PFR filed 5/17/06
For Luebeck: Alex Flynn; Adam B. Stephens; Rebecca Robin Lawnicki

Issue: Whether the traffic stop, valid at inception, was impermissibly extended so as to invalidate consent to search the car.

Holding: 

¶14      … (I)n its decision reaffirming the order granting Luebeck’s motion to suppress the evidence, the circuit court stated:

I don’t think any reasonable person would have felt this encounter had concluded and that he was free to leave.

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding:

¶12      … Though there is some confusion in the case law, we believe that the distinction is that a confidential informant is a person, often with a criminal past him- or herself, who assists the police in identifying and catching criminals, while a citizen informant is someone who happens upon a crime or suspicious activity and reports it to police. 

State v. Calvin R. Kolk, 2006 WI App 261
For Kolk: Michael Zell

Issue/Holding: Information provided by a named, citizen informant (that Kolk had picked up drugs in Milwaukee and would be driving to Madison) was insufficiently reliable to support reasonable suspicion of criminal activity:

¶17      To recapitulate, the police were able to corroborate: (1) Kolk’s identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it,

State v. Eugene Patton, 2006 WI App 235
For Patton: Daniel R. Clausz

Issue/Holding

¶10   Under appropriate circumstances, an informant’s tip can provide a law enforcement officer with reasonable suspicion to effectuate a Terry stop. Rutzinski, 241 Wis.  2d 729, ¶17;  J.L., 529 U.S. at 270. However, before acting on an informant’s tip,