On Point

State v. Michael J. Foster, 2020AP2149-CR, District 4, 7/29/21 (not recommended for publication); case activity (including briefs)

A defendant claiming that trial counsel was ineffective for failing to ask for a theory of defense jury instruction must propose the language the instruction should have included and establish it is a correct statement of the law. Absent such a proposed instruction, the ineffective claim will fail.

State v. Anthony Francen Harris, 2019AP1908-CR, District 3, 7/30/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Police stopped the car Harris was driving in part because Skenandore, an officer-in-training, misread the data on his in-squad computer screen and wrongly concluded that the car’s owner didn’t have a valid license. (¶¶2-3, 5-7). His mistake doesn’t matter because the officer’s other observations justified the stop.

State v. Avery B. Thomas, Jr., 2021 WI App 59; case activity (including briefs)

Thomas was arrested for and charged with criminal conduct while he was on federal supervision. He was held on cash bail till after his plea, when his bail was modified to a signature bond. He remained in custody, though, because the feds had put a revocation hold on him. He was eventually sentenced after revocation on the federal case, and about a month after that he was sentenced in the Wisconsin case. (¶¶2-4). The Wisconsin court erred in denying Thomas credit for the 48 days he was in custody between the date his bail was modified and the date of his federal sentencing.

Waukesha County v. M.J.S., 20221AP105-FT, District 2, 7/28/21 (one-judge decision; ineligible for publication); case activity

Under § 51.20(11)(a), a demand for a jury trial must be made “48 hours in advance of the time set for final hearing,” if notice of final hearing was provided to the subject individual or his or her lawyer. Applying Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, the “time set for final hearing” is the original hearing date, not the date set after an adjournment.

State v. Lisa Rena Lantz, 2020AP742-CR, District 3, 7/27/21 (not recommended for publication); case activity (including briefs)

Lantz was convicted of conspiring to deliver methamphetamine between September 2015 and March 2016 and of soliciting the delivery of methamphetamine in February and March 2016. The court of appeals rejects Lantz’s argument that the charges are multiplicitous. It also rejects her challenge to her sentences.

On July 28, 2021, the court of appeals ordered publication of the following criminal law related decisions:

Trempealeau County v. B.K., 2020AP1166, District 3, 7/27/21 (one-judge decision; ineligible for publication); case activity

B.K. (“Brian”) argues he was denied procedural due process because he was not given particularized notice of which standard of dangerousness the County intended to prove at the final commitment hearing. He also contends the evidence presented at the hearing was insufficient to prove he was dangerous. The court of appeals rejects with both claims.

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

State v. George Steven Burch, 2021 WI 68, 6/29/21, on certification from the court of appeals, affirming a judgment of conviction; case activity (including briefs)

The circuit court properly exercised its discretion in allowing the state to introduce evidence relating to Fitbit data without requiring expert testimony on the reliability of the device.

Rusk County v. A.A., 2019AP839 & 2020AP1580, District 3, 7/20/21 (not recommended for publication); case activity (2019AP839; 2020AP1580)

A.A. appeals two recommitment orders, raising multiple constitutional issues as to both and challenging the sufficiency of the evidence of dangerousness as to one of the cases and the admission of hearsay evidence regarding the other. The court of appeals acknowledges that A.A.’s constitutional claims raise “important” and “thorny” issues about recommitment petition pleading requirements and the constitutionality of recommitment proceedings, but it it resolves both cases on the evidentiary issues. (¶¶15, 31-32).