On Point

State v. Alan R. Radke, 2003 WI 7, affirming 2002 WI App 146
For Radke: William E. Schmaal, SPD, Madison Appellate

Issue/Holding:

¶5. The precise question raised, therefore, is whether the “two strikes” law violates the Due Process Clause of either the United States or Wisconsin Constitution because it requires a greater penalty to be imposed on an offender convicted of a second Class B non-fatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A felony homicide offense.

State v. Donald R. Wield, 2003 WI App 179, PFR filed 8/28/03
For Wield: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: In determining whether a prior conviction under a since-repealed statute is a serious child sex offense comparable to § 948.02(1) so as to invoke the persistent repeater law, the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) doesn’t apply: “Thus,

State v. William J. Church (II), 2003 WI 74, reversing 2002 WI App 212, 257 Wis. 2d 442, 650 N.W.2d 873; earlier history: State v. William J. Church, 223 Wis.2d 641, 589 N.W.2d 638 (Ct. App. 1998), petition for review dismissed as improvidently granted, 2000 WI 90
For Church: James L. Fullin, SPD, Madison Appellate

Issue: Whether an increase in sentence on re-sentencing violated due process,

State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly

Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.

¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury.

State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70, ¶¶42-47
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL

Issue/Holding: The defendant’s right to testify does not include a right to testify falsely, Nix v. Whiteside, 475 U.S. 157 (1986):

¶37.

State v. Thomas A. Drexler, 2003 WI App 169, PFR filed 8/1/03
For Drexler: Ralph A. Kalal

Issue/Holding: In support of a collateral attack on a prior OWI conviction used to enhance a current OWI prosecution, Drexler submitted an affidavit asserting that the trial court had not advised him of his right to counsel: although this was enough to establish a prima facie case of denial of right to counsel,

State v. Paul R. Maxey, 2003 WI App 94
For Maxey: Douglas I. Henderson

Issue/Holding: A sentence may be enhanced by both the general repeater provision of § 939.62(1)(b) (1999-2000) and § the specific repeat drug offender provision of § 961.48(2) (1999-2000), given the rationale of State v. Richard W. Delaney, 2003 WI 9:

¶14. In summary, the law of Wis.

State v. Guy W. Colstad, 2003 WI App 25
For Colstad: T. Christopher Kelly

Issue/Holding: Expert testimony is not a prerequisite for admission of a PBT result at a suppression hearing. ¶29.

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether the search warrant was supported by probable cause to believe that the defendant currently possessed child pornography.

Holding:

¶17. “[E]very probable cause determination must be made on a case-by-case basis, looking at the totality of the circumstances.” State v.

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The search warrant satisfied the particularity requirement by authorizing seizure of the following: “[p]hotographs, movies, slides, videotape, negatives, and/or undeveloped film which would tend to identify … any other juvenile”; and “[m]agazines, books, movies, and photographs depicting nudity and/or sexual activities of juveniles or adults,