On Point

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State v. Kevin J. McDowell, 2022AP164-CR, District 4, 9/22/22 (not recommended for publication); case activity (including briefs)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

State v. Jay G. Jacomet, 2021AP2186-CR, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Under the totality of the circumstances, the police had a reasonable basis to suspect Jacomet was operating while intoxicated, so detaining him for field sobriety testing was lawful.

State v. Annika S. Christensen, 2022AP500, 9/9/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Christensen was one of two occupants of a parked car after dark. A police truck approached, parked close behind her, and shined its takedown light into the car. At least one officer got out of the car and knocked on the window. In a carefully-reasoned, well-explained decision, the court of appeals affirms the circuit court’s holding that Christensen was seized at this moment, and that the police lacked reasonable suspicion for that seizure.

State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)

In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.

Juneau County D.H.S. v. R.M., 2022AP1260, 9/29/22, District 4 (one-judge decision; ineligible for publication); case activity

R.M. appeals the termination of her parental rights to her son, M.M.

Sauk County v. W.B., 2021AP322, 9/9/22, District 4, (1-judge opinion, ineligible for publication; case activity

This decision should strike fear in the hearts of those who have executed a healthcare power of attorney or who hold an HPOA for a loved one. According to the court of appeals, when a court declares a person incapacitated and activates his HPOA, his agent may admit him to a nursing home. But the incapacitated person retains the power to revoke his HPOA and leave the nursing home. To prevent this result, a court must order a guardianship and protective placement for him.