On Point

State v. A.T., 2022AP544, 6/28/22, District 1, (1-judge opinion, ineligible for publication); case activity

Guys, if you have unprotected sex, call or text your partner after. And “Wisconsin law does not require courts to consider race or culture when determining whether to terminate parental rights.” Opinion, ¶29. Those are the two main takeaways from this TPR opinion.

State v. S.A., 2021AP1917-1919, 7/6/22, District 1, (1-judge opinion, ineligible for publication); case activity

The State petitioned to terminate Sarah’s parental rights to her three children because she had failed to assume parental responsibility and her kids were in continuing need of protective services.  According to the State, Sarah had trouble controlling her anger and mental health. She left her kids home alone, and she and the children’s father had a history of domestic violence.

State v. Sergio Moises Ochoa, 2022 WI App 35; case activity (including briefs)

Ochoa, charged with two counts of first degree intentional homicide, claimed self defense. The court of appeals rejects his claims that the circuit court violated his right to present his defense by excluding certain evidence he wanted to present. The court also rejects his claim that the circuit court erred by refusing to modify the pattern jury instruction applicable to his case.

Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808, June 24, 2022, reversing 945 F.3d 265 (5th Cir. 2019); Scotusblog coverage

As you all know, Dobbs overruled Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which held that a woman has a constitutional right to an abortion under the 14th Amendment of the United States Constitution. Dobbs has implications for SPD clients. This post highlights a few.

State v. Richard M. Arrington, 2022 WI 53, reversing a published court of appeals opinion, 2021 WI App 32, 7/1/22, case activity (including briefs)

In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.

State v. Scott William Forrett, 19AP1850, 2022 WI 37, 6/3/2022, affirming a published court of appeals decision; case activity (including briefs)

In 1996, the state revoked Scott Forrett’s driver’s license under Wis. Stat. § 303.305(10) because he refused a blood test for alcohol. Under the state’s statutory scheme of progressive punishment for OWIs, that revocation counts the same as a prior conviction for drunk driving would. The state supreme court now holds this statutory scheme unconstitutional, saying it imposes increased criminal penalties on those who assert their Fourth Amendment right to refuse a warrantless blood draw. This means that Forrett’s conviction in the case before the court–for an OWI from 2017–is a sixth, not a seventh, offense.

State ex rel. DeLorean Bryson v. Kevin Carr, 2022 WI App 34; case activity (including briefs)

A few months ago the court of appeals decided Ortiz v. Carr, holding (with a number of important caveats) that DOC may not take a greater percentage of an inmate’s wages for restitution than the circuit court has ordered–if the circuit court has ordered a specific percentage. Here, the court applies similar logic to obligations other than restitution. It holds that DOC has the authority to set a percentage rate for the crime lab surcharge and the DNA surcharge, but that the circuit court has the authority to set a different rate for collection of court fees. It does not decide who has authority over the victim-witness surcharge, because DOC did not appeal the circuit court’s determination of that question (which was that DOC has the authority to set the percentage, but that its new policy of taking 50 percent violates the administrative rules it earlier promulgated).

State v. Avan Rondell Nimmer, 2022 WI 47, June 23, 2022, reversing an unpublished court of appeals decision; case activity (including briefs)

This decision ultimately involves only the application of well-settled 4th Amendment law to the particular facts of the case rather than development of the law. But it comes perilously close to something worse, for three justices embrace a modification of the quantum of evidence needed to justify an investigatory stop and accept uncritically the claims that the manufacturer of ShotSpotter acoustic sensors makes for the accuracy of its product and touts the device’s asserted accuracy in assessing reasonable suspicion in future cases.

Sauk County v. S.A.M., 2022 WI 46, reversing an unpublished court of appeals opinion, 2019AP1033; case activity

Unlike other states, Wisconsin appellate courts have for decades dismissed most appeals from expired ch. 51 orders as moot. As a result, there was been little appellate review of circuit court decisions declaring people mentally ill, committing them to government custody, and medicating them against their will. Not any more. In a 4-3 decision, SCOW holds that appeals from expired recommitment orders are not moot due to their collateral consequences. While S.A.M. won the war on mootness, he lost his due process and sufficiency of evidence claims. His recommitment was affirmed.

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; reversed, 2023 WI 57 case activity (including briefs)

Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?