Criminal

State v. Christopher J. Vaaler, 2019AP2174, 8/6/20, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) An officer pulled Vaaler over in the very early morning for not having his headlights on. Per the court of appeals, Vaaler’s unusual manner of speech, the odor of intoxicants, and the fact of an open beer next to him were enough for the officer to conduct the OWI investigation that ultimately led to Vaaler’s arrest and conviction: One indicia that Vaaler was driving while intoxicated was the odor of intoxicants emanating from Vaaler’s vehicle. See, e.g., State v. Krause,…
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs) Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn…
On July 29, 2020, the court of appeals ordered publication of the following criminal law related cases: State v. Dawn M. Prado, 2020 WI App 42 (striking down implied consent law for unconscious drivers) State v. Mark J. Bucki, 2020 WI App 43 (dog sniff evidence need not be corroborated to be admissible) Winnebago County v. S.H., 2020 WI App 46 (addressing sufficiency of evidence for ch. 51 recommitment hearings)
Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020) Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief. Habeas wins and ineffective assistance of trial counsel victories are both rare as hen’s teeth, so this…
Danny Wilber v. Michael Thurmer, Case No. 10-C-179 (E.D. Wis., Aug. 4, 2020). It’s said that defendants having meritorious postconviction claims are more likely to win relief on a habeas petition in federal court than on direct appeal in Wisconsin’s appellate courts. This decision could be a poster child for that theory.  On Point last reported on Danny Wilber’s case in 2018 when the court of appeals rejected seven §974.06 claims and affirmed his conviction for 1st degree homicide. Judge Griesbach just granted Wilber’s habeas petition and ordered a new trial. Wilber argued that there was insufficient evidence to…
State v. Brian Anthony Taylor, 2019AP1770-CR,  District 1, 7/28/20 (not recommended for publication); case activity (including briefs) What a frustrating decision. Taylor filed a pre-sentencing motion to withdraw his plea for repeated sexual assault of a child, but the circuit court denied it applying the more stringent post-sentencing plea withdrawal standard. “No problem,” says the court of appeals, “we’ll apply the correct standard for you and affirm.” When a defendant moves for pre-sentencing plea withdrawal he must show by a preponderance of the evidence “a fair and just reason” for his motion. Circuit courts should liberally grant plea withdrawal…
State v. L.C., 20AP796, District 1, 7/28/20 (one-judge decision; ineligible for publication); case activity Whether to grant a default judgment in a TPR proceeding as a sanction for a parent’s egregious conduct is left to the circuit court’s discretion, and the circuit court properly exercised its discretion in defaulting L.C. After L.C. missed two depositions dates, the state filed a motion for default judgment on the grounds of the TPR petition filed against her. The circuit court ultimately didn’t grant that motion out of concern for her emotional, psychological, and competency issues, but told her she needed to attend…
SCOWstats recently posted a three-part analysis of the 2019-2020 term. The first post noted the plunge in SCOW’s output this year. It issued only 45 opinions. The record low is 43. Indeed, since 1971 the number of opinions is, à la a certain Bruce Springsteen refrain, going down, down, down down. Then there’s this shocker: Justice Hagedorn actually voted with Justices A.W. Bradley and Dallet more often than he did with R.G. Bradley! Will this trend continue now that Karofsky is in and Kelly is out? The second post, per usual, tallies the number of split decisions, frequency…
State v. Leonard D. Kachinsky, 2020AP118-CR, 7/29/20, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs) In 2018, the circuit court imposed a harassment injunction against Kachinsky (then a municipal judge) based on his conduct toward M.B., the municipal court manager. This appeal concerns his conviction and sentence for violating that order by hanging a sexual harassment poster by M.B.’s desk and highlighting the term “sexual” each time it appeared. Here are the terms of the harassment injunction: All communications between [Kachinsky] and [M.B.] shall be limited to what is necessary to perform the functions of the…
State v. Darrin Stingle, 2019AP491, District 3, 7/28/20 (1-judge opinion, ineligible for publication); case activity (including briefs) Stingle is not the typical subject of an On Point post. He owns farmland in Outagamie County, and the DNR cited him for discharging fill material into wetlands on it. At a 1-day bench the trial judge twice made comments suggesting that he had prejudged Stingle’s guilt. The court of appeals reversed and remanded for a new trial before a different judge. It also admonished (but did not sanction) the State’s appellate lawyer for requesting an extension two weeks after its deadline…
Waupaca County v. K.E.K., 2018AP1887, petition for review of an unpublished court of appeals decision granted 7/24/20; case activity Issues presented: Did the circuit court lose competency to conduct a recommitment hearing because the County did not file the evaluation of K.E.K. at least 21 days before the expiration of her commitment, as required by § 51.20(13)(g)2r.? Is the recommitment standard in § 51.20(1)(am) facially unconstitutional under the 14th Amendment  because it violates the guarantees of substantive due process and equal protection of the law or abridges the privileges or immunities of citizens? Is the recommitment standard in § 51.20(1)(am) unconstitutional…
State v. Rodney Timm, 2019AP1922, District 3, 7/21/20 (not recommended for publication); case activity (including briefs) If you handle ch. 980 cases you know that 2013 Wis. Act 84 changed the legal standard under § 980.09 for determining whether a person committed under ch. 980 is entitled to a discharge hearing. But you don’t know what the Act 84’s revisions to the standard mean—because no one knows, not even the supreme court. The court of appeals doesn’t decide what the standard means in this case, either, but it teases enough thread out of the tangle created by Act 84…
State v. Jeffrey T. Ziegler, 2019AP858-CR & 2019AP859-CR, District 4, 7/23/20 (one-judge decision; ineligible for publication); case activity (including briefs) To commit invasion of privacy in violation of § 942.08(2)(d), a person must, among other things, look into another’s dwelling “for the purpose of sexual arousal or gratification….” § 942.08(2)(d)1. Contrary to Ziegler’s claim, the allegations in the complaints in his cases provided a sufficient factual basis for this element, and thus his guilty pleas stand. ¶11      The circuit court found that the factual allegations in both criminal complaints, coupled with the reasonable inferences to…
Clockwise, from bottom right: Pip; Sally; Jake; Gael; Scout–all listening intently to a lecture on statutory construction while waiting for a Snausage® On Point is taking a short, well-deserved (or at least greatly needed) hiatus for some R & R during these dog days of summer. We know those dogs will be happy we have some more time to spend with them! See you in August.
State v. Antonio L. Simmons, 2018AP591-CR, District 1, 7/21/20 (not recommended for publication); case activity (including briefs) Twenty years ago Simmons was convicted of three counts of recklessly endangering safety for shooting into a car carrying three people, one of whom Simmons had been fighting with in a bar shortly before the shooting. The court of appeals affirms the circuit court’s denial of Simmons’s request under § 974.07 for DNA testing of physical evidence found in the car he was supposedly in at the time of the shooting. A number of eyewitnesses identified Simmons as the shooter, though one…
State v. Bobby L. McNeil, 2019AP467-CR & 2019468-CR, District 1, 7/21/10 (not recommended for publication); case activity (including briefs) McNeil was convicted of drug offenses, obstructing, and bail jumping after a trial in two consolidated cases. His challenges to the joinder of the cases and to various evidentiary issues are rejected, but he prevails on the challenge to his sentence because the circuit court relied on inaccurate information at sentencing. In the first case McNeil was seen entering and exiting a car that had been reported stolen; he fled, was apprehended, and was charged with obstructing and drug possession.…