On Point

State v. Robert J. Baur, 2021AP55, 8/25/2022, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

An OWI defendant can attack prior convictions–thus seeking a lower offense number and lower associated penalty–only if he or she lacked counsel in that prior proceeding and did not knowingly, voluntarily and intelligently waive the right to counsel. Wisconsin courts have adopted a burden-shifting regime: if a defendant can show that the court in the prior proceeding didn’t do a proper colloquy on the counsel right, the state must then prove that the defendant nevertheless understood the right. But given that priors are often from quite a while ago, it often happens that no transcript of the prior hearing can be produced. What then?

State v. Jeffrey S. Wein, 2021AP1696-98, 9/7/22, District 2 (one-judge decision; ineligible for publications) case activity (including briefs)

Wein appeals convictions of three civil offenses arising from what the state says was his driving of a pontoon boat while he was drunk. The only issue for each charge is whether he, rather than someone else on the boat, was driving.

State v. Randaro V. Jones, 2020AP1046, District 1 (one-judge decision; ineligible for publication) 9/7/22, case activity (including briefs)

This is not an OWI case; rather, it’s an appeal from a conviction of recklessly endangering safety by using a firearm while intoxicated. But the blood test that led to this charge came as a result of an arrest for OWI-first, so the issue is whether there was probable cause for that arrest.

Sheboygan County HSD v. P.W.S., 2022AP426, District 2, 9/28/22 (one-judge decision; ineligible for publication); case activity

In this fact-intensive decision (¶¶2-17), the court of appeals rejects P.W.S.’s challenge to the sufficiency of the evidence that there was a substantial probability he was dangerous under § 51.20(1)(a)2.c.

State v. J.D.C., Jr., 2022AP1028, District 1, 9/27/22 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects J.D.C.’s claim that the circuit court erroneously exercised its discretion in deciding that termination of J.D.C.’s parental rights was in the best interest of his parental rights to C.M.M.

Brown County DHS v. K.Y.T., 2022AP531, District 3, 9/27/22 (one-judge decision; ineligible for publication); case activity

The county petitioned to terminate K.Y.T.’s parental rights to M.Z. alleging abandonment for both a 3-month and a 6-month period and failure to assume parental responsibility.  The evidence was sufficient to support the jury’s verdict that the county proved both grounds.

State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)

Issue: (adapted from the State’s PFR):

The 5th Amendment prohibits a prosecutor from commenting  on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?

State v. Brynton C. Foston, 2022AP387, 9/14/22, District 2, (1-judge opinion, ineligible for publication); case activity (including briefs) An officer saw Foston driving without headlights between 2:00 and 3:00 a.m. and activated his emergency lights. Foston didn’t stop. He accelerated, pulled into his driveway, and stumbled as he tried to reach his back door. The […]

Winnebago County v. P.D.G., 2022AP606-FT, 9/7/22, District 2, (1-judge opinion; ineligible for publication); case activity

Winnebago County dumped 550 pages of discovery on counsel 2 hours and 15 minutes before “Paul’s” recommitment hearing, so he requested a adjournment. “Denied!” said the circuit court because §51.20(10)(e) allows only 1 adjournment, which had already been used. If the SPD had appointed counsel sooner, this wouldn’t have happened. On appeal, Paul argued that the court misread the statute, and he can’t control the appointment process. He also argued that the county failed to prove that the examiner gave him a “reasonable explanation” of the “particular medication” prescribed for him per §51.61(1)(g)(4) and Outagamie County v. Melanie L. The court of appeals affirmed.

State v. D.T., 2022AP909, 8/23/22, District 1 (oen-judge decision; ineligible for publication); case activity

D.T. showed up late for his Zoom TPR trial. It had been set for 9:00; D.T. appeared at 11:00 and said he was having eye trouble that kept him from logging in. The circuit court defaulted him and declined to vacate that default. The court of appeals affirms, noting that D.T. had missed other hearings.