On Point

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 above is important in considering whether Maloney’s trial counsel was ineffective in failing to challenge the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2. 

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).

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 of first-degree intentional homicide, may be said to take place——that is,

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 so require” in TPRs, ¶¶8-9.

The court remands for determination of whether issue preclusion is appropriate in this instance,

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 enhancement under Wis.

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 provided by law.”).

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 that it is unreasonable to think that the legislature meant to hold open the time period for a request beyond when a suspect is released from custody.

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 avoid “allocating any portions of the confinement imposed among the base offense and enhancers.”)

Issue/Holding: Maximum confinement for TIS-I attempt to commit a classified felony is one-half the maximum confinement for the completed crime,

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 argument, based on claim of children-as-supsect-class, is also rejected, ¶¶23-29.

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 the sentence. As the supreme court explained in State v.