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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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Counsel – Ineffective Assistance – Deficient Performance — Failure to Research Law – “Unsettled” or Murky Law
State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141, but nonetheless retaining jurisdiction pending resolution of other issues For Maloney: Lew A. Wasserman Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled: ¶23 The split of authorities described […]
Disobedient Child Defense to Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97 For McGee: Amelia L. Bizarro Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Territorial Jurisdiction Defense, § 939.03 — First-Degree Homicide — Intent as “Constituent Element [That] Takes Place”
State v. Derek Anderson, 2005 WI 54, on certification Anderson: Neil C. McGinn, SPD, Milwaukee Trial; Wm. J. Tyroler, SPD, Milwaukee Appellate Issue/Holding: ¶47 We conclude that § 939.03(1)(a) is satisfied upon proof that the defendant committed an act in Wisconsin manifesting the intent to kill. Specifically, intent to kill, which is a constituent element […]
Defenses – Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57 For Terrance M.: Theresa J. Schmieder Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts […]
OWI – Penalty Provision – Timing of Priors
State v. Brandon J. Matke, 2005 WI App 4, PFR filed 1/6/05 For Matke: James B. Connell Issue: Whether the number of prior OWI convictions used for penalty enhancement, § 346.65(2), is determined as of date offense is committed or date of sentencing for offense. Holding: ¶5. How and when to count prior OMVWI convictions for purposes of penalty […]
OWI — Evidence – Admissibility, Field Sobriety Tests
State v. Richard B. Wilkens, 2005 WI App 36 For Wilkens: Waring R. Fincke Issue/Holding: ¶14. In Wisconsin, the general standard for admissibility is very low. Generally, evidence need only be relevant to be admissible. See Wis. Stat. § 904.02; State v. Eugenio, 219 Wis. 2d 391, 411, 579 N.W.2d 642 (1998) (“All relevant evidence is admissible unless otherwise […]
OWI — Implied Consent, Driver’s Request for Additional Test, § 343.305 (5)(a), Made After Release From Custody – Timeliness
State v. Patrick J. Fahey, 2005 WI App 171 Issue: Whether requested alternative testing at agency expense is deemed a “request” within § 343.305(5)(a) where made after driver was released from custody, left police department, and then returned about 15 minutes later, ¶7. Holding: ¶14 … The State, in keeping with the circuit court’s decision, argues […]
Enhancer — TIS-I
State v. Kent Kleven, 2005 WI App 66 For Kleven: Roberta A. Heckes Issue/Holding: Where sentencing includes multiple enhancers, the court may identify the amount of confinement attributable to each enhancer, without violating the rule that an enhancer doesn’t support a separate sentence. ¶¶16-18. (The court adds, however, ¶18 n. 4, that the “better practice” is to […]
Due Process – Sex Offender Registration Juvenile – Constitutionality
State v. Jeremy P., 2005 WI App 13 For Jeremy P.: Adam B. Stephens Issue/Holding: Because mandatory sex offender registration for certain juvenile offenders, §§ 938.34(15m)(bm) and 301.45(1m), is not punishment it does not violate procedural due process, ¶¶8-15. The court’s retention of discretion in administering registration defeats a substantive due process claim, ¶22. An equal protection […]
Enhancer — Allocation
State v. Kent Kleven, 2005 WI App 66 For Kleven: Roberta A. Heckes Issue/Holding: ¶14. We conclude that, provided the sentence imposed exceeds the maximum term of imprisonment established for the base offense, a court’s remarks attributing a portion of the sentence to an applicable enhancer does not constitute grounds to vacate that portion of […]
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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.