On Point

State v. Michael J. Leighton, 2021AP1949-cr, 3/30/22, District 2 (not recommended for publication; case activity (including briefs)

In 2018, the State charged Leighton with misdemeanor theft and fraudulent use of a credit card, both as repeaters.  In 2020, he asked the DA for “prompt disposition” of his case per §971.11. Receiving no response, he moved for dismissal, which the court granted without prejudice. On appeal, he says dismissal should have been with prejudice.  The court of appeals disagreed due to the victim’s rights.

On March 30, 2022, the court of appeals ordered publication of the following criminal law related decisions:

State v. Daimon Von Jackson, Jr., 2019AP2383, petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23;  case activity (including briefs)

Issues (from Von Jackson’s PFR):

1.    Whether a defendant is prejudiced when trial counsel does not communicate with him before his homicide trial.

2.    Whether a defendant should be allowed to obtain new counsel when his current counsel is deficient.

City of Waukesha v. Brian John Zimmer, 2012AP530-531, 3/23/22, District 2; case activity (including briefs)

The circuit court suppressed the results of Zimmer’s preliminary breath test because Officer Moss demanded, rather than asked, Zimmer to submit to a PBT, contrary to §343.303. It also dismissed Zimmer’s OWI citations. The court of appeals reversed because Moss had probable cause arrest even before he administered the PBT and because the circuit allowed its dislike of the PBT to cloud its judgment.

State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.

Portage County v. D.A., 2021AP1683, 2021AP1685, 2021AP1686, District 4, 3/24/22 (one-judge decision; ineligible for publication); case activity (for 21AP1683)

D.A. (“David”) raises various challenges to the finding his three children are in need of protection or services and to the dispositional orders. The court of appeals rejects his claims.

State v. Eric D. Bourgeois, 2022 WI App 18; case activity (including briefs)

Police went looking for Bourgeois at a hotel because he might have been in possession of stolen handgun, he had PTSD, and he had a drug problem. At 2:00 a.m., despite a “do not disturb” sign, 3 officers tried to enter his room unannounced first using a key card and then a master key. Due to the chain lock, they could only peek through but they saw that Bourgeois alone and unarmed  He declined to let them in and turned away. Claiming exigent circumstances, police busted through the hotel door.

Victor Ortiz, Jr. v. Kevin A. Carr, 2022 WI App 16; case activity (including briefs)

Attorneys Jason Luczak and Jorge Fragoso of Gimbel, Reilly, Geurin & Brown generously took this case pro bono. And now Jorge offers this guest post on their defense win:

Prison inmate (and hero to institutionalized persons) Victor Ortiz filed a petition for writ of certiorari seeking to limit the percentage of his income diverted for the payment of restitution. He won. The court of appeals ordered the Department of Corrections to limit its withholdings to 25% of Ortiz’s wages, half of what the Department sought.

State v. Mitchell D. Green, 2021AP267, 3/22/22, District 1 (not recommended for publication); petition for review granted, 6/22/22, reversed, 2023 WI 57 case activity (including briefs)

The state charged Green with crimes including child sex trafficking. The alleged victim testified that another man had trafficked her, but that Green had driven her a particular encounter where a client had spit in her mouth. After the state rested, the defense called Green’s cousin–his name was Cousin–who said that he’d been the one to drive the girl that night. Cousin said he’d done the driving for a third man, Delmar, who’d asked for a ride in exchange for gas money and then invited the alleged victim and another man along for the ride. Cousin said he remembered the incident because when he picked the alleged victim up after the encounter, she had mentioned the mouth-spitting.

Jackson County DHHS v. K.M.G., 2021AP2159, 3/17/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Shortly after birth, V.J.T. was placed with a foster mom, a cousin of V.J.T.’s biological mother. Meanwhile, K.M.G., (the biological father) and T.T. (a biological grandfather) remained involved with V.J.T.  The grandfather even wanted to be the child’s guardian, a result a child psychologist supported. The circuit court nevertheless, terminated the father’s parental rights when V.J.T. was 2. The court of appeals affirms mostly because V.J.T. had been with a foster mother since birth.