Criminal

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity
Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had
Continue Reading Circular reasoning upheld as mother testifies about father’s suspected heroin use during TPR trial

Jan. 27, 2023 – A county jail inmate sexually assaulted by a guard who was disciplined but not fired for previous fraternization with inmates failed to show that the county’s conduct was the moving force behind the assault, the Wisconsin Supreme Court has ruled.In Slabey v. Dunn County, 2023 WI 2 (Jan. 18, 2023), the supreme court specifically held (5-2) that the inmate did not meet the standard for a constitutional tort, under 42 U.S. Code section 1983,
Continue Reading Failure to Fire Guard Who Later Assaulted Inmate Not Sufficient for Section 1983

Jan. 27, 2023 – A defendant whose attorney failed to contact two alibi witnesses is entitled to a hearing on his claim for ineffective assistance of counsel, the Wisconsin Supreme Court has ruled.In State v. Jackson, 2023 WI 3 (Jan. 20, 2023), the supreme court unanimously held that testimony of the alibi witnesses, if true, would meet the standard for an ineffective assistance of counsel claim.Justice Rebecca Dallet wrote the unanimous (6-0). Justice Patience Roggensack did not participate.Upstairs
Continue Reading Failure to Contact Alibi Witnesses Entitles Defendant to Machner Hearing

Brown County DHHS v. T.R., 2022AP1094, District 3, 1/20/23 (one-judge decision; ineligible for publication); case activity
In a TPR proceeding a motion for summary judgment may be filed any time before trial, as prescribed in § 48.297(1) and (2), and is not governed by the time limit for summary judgment motions prescribed in § 802.08(1).

The County filed a motion for partial summary judgment about 9 months after it filed the TPR petition against T.R. The circuit court
Continue Reading TPR summary judgment motion may be filed anytime before trial

Rusk County DHHS v. R.S., 2022AP1530, District 3, 1/20/23 (one-judge decision; ineligible for publication); case activity
R.S. (“Ruth”) argues that at the trial on the County’s petition to terminate her parental rights, the County Department of Health and Human Services didn’t prove it made reasonable efforts to provide the services ordered in the original CHIPS dispositional order. The court of appeals rejects the claim.
The TPR petition against Ruth alleged continuing CHIPS as a ground for termination. (
Continue Reading Evidence proved County made reasonable efforts to provide services to parent under CHIPS order

Rock Count v. H.V., 2022AP1585-FT, 1/20/23, District 4; (1-judge opinion, ineligible for publication); case activity
This is an appeal from a ch. 51 recommitment under the 2nd standard– dangerousness to others. H.V.’s main argument was that the circuit court erroneously relied on hearsay to find that he is dangerous when not committed. The court of appeals disagreed and further found the county’s evidence sufficient to support the commitment.
At H.V.’s recommitment hearing, the county presented just two witnesses,
Continue Reading COA rejects hearsay arguments, affirms recommitment under 2nd standard of dangerousness

Waukesha County v. G.M.M., 2022AP1207, 1/18/23, District 2, (1-judge opinion, ineligible for publication); case activity
This appeal involves a recommitment under the 3rd standard of dangerousness. G.M.M. argued that the county presented insufficient evidence of both mental illness and dangerousness. She also argued that the circuit court failed to make the findings required under Langlade County v. D.J.W., 2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277.  The court of appeals rejected all 3 claims.
Continue Reading Evidence at recommitment hearing established mental illness and dangerousness under 3rd standard

State v. Ahmed A.M. Al Bawi, 2021AP432-CR, District 3, 1/18/23 (not recommended for publication); case activity (including briefs)
Al Bawi’s trial attorney was not ineffective in advising him about the immigration consequences of his plea.
Al Bawi, an Iraqi citizen, pleaded no contest to third degree sexual assault. The U.S. Department of Homeland Security later detained him, asserting there was probable cause to deport him because of the conviction. He then moved to withdraw his plea, alleging he
Continue Reading Trial counsel’s advice about immigration consequences was sufficient

​Jan. 20, 2023 – A prosecutor’s withholding of a child abuse report from a defendant did not violate the constitutional rule established by the U.S. Supreme Court in
Brady v. Maryland, because the report contained the same information as a sheriff’s report that was turned over to the defendant, the Wisconsin Supreme Court has unanimously ruled.
​​In
State v. Hineman,2023 WI 1 (Jan. 10, 2023) the supreme court also held that the identity of the person who was
Continue Reading Duplicative Child Abuse Report Not Material Under Brady

Jan. 20, 2023 – A workers’ compensation settlement agreement that required $400,000 to be paid to a law firm’s trust account created an express trust for the claimant’s medical creditors, the U.S. Court of Appeals for the Seventh Circuit has ruled.In Ryan v. Prpa, No. 22-1536 (Dec. 19, 2022), the Seventh Circuit also held that a provision of state law did not exempt the $400,000 from the bankruptcy estate of the workers’ compensation claimant.Workers’ Compensation Case SettlesAfter filing
Continue Reading Award under Workers’ Compensation Agreement Part of Bankruptcy Estate

State v. O.F., 2022AP1703, District 1, 01/18/2023 (one-judge decision; ineligible for publication); case activity
Ultimately, the issue addressed by the court of appeals is whether O.F. received ineffective assistance of counsel where trial counsel was alleged to have “violated his duty of confidentiality and loyalty” to his client. O.F.’s claims were based on multiple statements made by his trial counsel that arguably disclosed confidential information to the court and painted O.F. in a bad light. The court rejects
Continue Reading COA affirms TPR order and holds that claimed structural error requires post-disposition motion and Machner hearing

State v. E.B., 2022AP1882, District 1, 01/18/2023 (one-judge decision, ineligible for publication), case activity
This case concerns only the disposition phase of E.B.’s TPR case. She argued that the circuit court erroneously exercised its discretion with regard to the best interest of the child factors set forth in Wis. Stat. § 48.426(3).  Specifically, E.B. argued that the circuit court did not give her own testimony enough weight and gave too much weight to the foster mother’s testimony. However,
Continue Reading COA rejects mother’s claim that circuit court improperly weighed best interest factors at TPR disposition

State v. Kelly A. Monson, 2022AP1438-CR, District 2, 1/18/23 (one-judge decision; ineligible for publication); case activity (including briefs)

There was reasonable suspicion to detain Monson and have her perform field sobriety tests.

Officer Kramer saw Monson’s car stopped in traffic a full vehicle length back from a stop sign, something “out of the ordinary” that “would indicate to a reasonable police officer that something was amiss.” (¶¶2, 15). Monson was “messing around with something in
Continue Reading Officer Had Reasonable Suspicion to Detain Driver to Perform Field Sobriety Tests

County of Winnebago v. Ryan C. Kaltenbach, 2022AP794, District 2, 1/18/23 (one-judge decision; ineligible for publication); case activity (including briefs)
Though this is a “close case” (¶¶4, 11), the facts are sufficient to establish reasonable suspicion to detain Kaltenbach to have him perform field sobriety tests.
Kaltenbach was stopped shortly after midnight because one of his headlights was out. The officer “immediately … smell[ed] a moderate odor of alcohol emanating from [Kaltenbach] as he spoke….”
Continue Reading Officer had reasonable suspicion to detain driver to perform field sobriety tests (1/18/23 #2)

Counterman v. Colorado, USSC No. 22-138; cert. granted 1/13/23; Scotusblog page (containing links to briefs and commentary)
Question presented:

Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.

The Court decided Virginia v. Black,
Continue Reading SCOTUS to consider mental state requirement for “true threats”