On Point

On October 26, 2022, the court of appeals ordered the publication of the following criminal law related decision: State v. Terry L. Hibbard, 2022 WI 53 (aiding buyer in drug sale can lead to Len Bias liability because it also aids dealer)

State v. Marty S. Madeiros, 2021AP405-CR, District 4, 10/27/22 (not recommended for publication); case activity (including briefs)

Trempealeau County v. C.J., 2022AP286, 10/11/22, District 3 (one judge decision; ineligible for publication) case activity

C.J. (“Carter” in the opinion) is diagnosed with paranoid schizophrenia. He was initially committed after an incident in which he drove recklessly with his girlfriend in the car, threatening to kill her and himself along with the president and vice president. As the six-month commitment neared its end, the county petitioned to extend.  It did so even though C.J. had not had further incidents or problems in his group home, was taking his medications voluntarily; recognized his mental illness, and expressed that he wished to continue medication because it was helping him a great deal. (¶¶3-8).

State v. Dreama F. Harvey, 2022 WI App 60; case activity (including briefs)

A jury convicted Harvey of reckless homicide by the delivery of heroin. On appeal, she notes that the jury instructions would have permitted conviction on the theory that she either aided and abetted another supplier or was part of the chain of distribution–that is, that she supplied the person who actually sold the heroin to the decedent. But there was no evidence she’d done any of those things: if she’d committed the crime, all the evidence showed that it was by selling the heroin directly to the buyer, who ingested it and died. The verdict forms were general: the jury was asked only to determine guilt or innocence, not whether Harvey was the principal, an aider, or a higher-up in the chain. So, Harvey says, we can’t know whether the jury convicted her based on one of the other two theories for which there was no evidence, and her conviction must be reversed.

State v. D.W. Jr., 2022AP1397, 10/18/22, (1-judge opinion, ineligible for publication); case activity

D.W. Jr. has along criminal history. He was incarcerated when his son, J.W., was born, and the two had never lived together. In fact, J.W. and his brother lived with a foster parent, who was also an adoptive resource for both of them. When the circuit court terminated D.W.’ Jr.’s parental rights, he argued that the court neglected to consider a dispositional alternative– the appointment of a guardian for J.W. It didn’t fly.

State v. A.A.L., 2022AP1074, 10/11/22, District 1, (1-judge opinion, ineligible for publication); case activity 

A parent’s failure to meet the conditions for the return of her child due to her incarceration is not a constitutional basis for finding her an unfit parent during the grounds phase of a TPR proceeding. Kenosha County DHS v. Jodie W., 2006 WI 93, 293 Wis. 2d 530, 716 N.W.2d 845. “Alexis” argued that the circuit court violated this rule when it found grounds to terminate her rights to “Tom” based on continuing CHIPS and failure to assume parental responsibility. The court of appeals disagreed.

State v. Kevin J. McDowell, 2022AP164-CR, District 4, 9/22/22 (not recommended for publication); case activity (including briefs)

The decision in this interlocutory appeal addresses the procedure for assessing whether out-of-court statements the state proposes to admit at a criminal trial are “testimonial” and therefore inadmissible under the Confrontation Clause. It also rejects the state’s claim that a deceased witness’s statements to police are nontestimonial because they were made to address an ongoing emergency.

State v. Caroline J. Arndt, 2022AP450-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Arndt pleaded no contest to disorderly conduct, but the circuit court’s plea colloquy was defective in two crucial ways, so on the merits—and because the state declined to file a brief in the court of appeals—she’s entitled to withdraw her plea.

State v. B.S.S., 2021AP2174, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity

B.S.S. was adjudicated delinquent for sexual assault. She anticipated filing a motion to stay the sex offender registration requirement, see § 938.34(15m)(c) and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1, so she asked the court to provide funding for a defense expert to do a psychosexual evaluation to support the motion and to adjourn the dispositional hearing to get the evaluation done. In the course of denying her motions, the court made comments about the relevant legal standard for staying the requirement. (¶¶3-10). B.S.S. argues the court’s statements  show the court had prejudged, and thus was biased against, her request for a stay. The court of appeals rejects her claim.

State v. Michael J. Viezbicke, 2021AP2172, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Viezbicke filed a postconviction motion under § 974.06 challenging his convictions in a 2017 misdemeanor case. The court of appeals holds the motion was barred because he is no longer in custody under the sentence imposed in that case.