On Point

On Point is sponsored by the Wisconsin State Public Defender. All content is subject to public disclosure. If you have questions about this blog, please email Colleen Ball at ballc@opd.wi.gov or Jefren Olsen at olsenj@opd.wi.gov.
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By: Wisconsin State Public Defender

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Wisconsin State Public Defender

Latest from On Point

State v. Todd DiMiceli, 2020AP1302-CR, District 4, 9/16/21 (not recommended for publication); case activity (including briefs) Under § 968.375(6), a court-ordered subpoena for electronic communication records must be served within 5 days of issuance. The subpoena used to obtain internet records regarding DiMiceli from Charter Communications wasn’t served till 9 days after issuance. The records obtained led to further investigation and charges that DiMiceli was in possession of child pornography. (¶¶2-7). The delay in service of the subpoena doesn’t entitle DiMiceli to suppression of the evidence obtained with the subpoena because the violation of the 5-day…
State v. Nicholas Reed Adell, 2020AP2135-CR, District 4, 9/16/21 (recommended for publication); case activity (including briefs) Reversing a circuit court order suppressing evidence, the court of appeals holds the totality of the circumstances gave rise to a reasonable suspicion that Adell was driving with a prohibited alcohol concentration (PAC) and that police could extend the traffic stop to have Adell perform field sobriety tests (FSTs). Adell was stopped for speeding at 5:50 a.m. He told the officer he was running late for work. During his conversation with Adell, the officer noted an odor of intoxicants coming from inside the…
Marquette County v. T.W., 2020AP1908, 9/16/21, District 4 (one-judge decision; ineligible for publication); case activity T.W. was living in a group home in 2019 when, per testimony at his commitment trial, he punched, choked and threatened various people while refusing to take his medications. He was committed. On appeal he challenges the circuit court’s admission of some evidence. The county responds that his challenge is moot. The court holds the case not moot, though the six-month original commitment is long expired. T.W. points out that Wis. Stat. § 46.10(2)-(3) directs the county department to collect…
State v. Thomas M. Parkman, 2021AP27, 9/16/21, District 4 (one-judge decision; ineligible for publication); case activity (including briefs) In February 2020, a few weeks before the COVID-19 pandemic really got going in Wisconsin, the circuit court sentenced Parkman to six months in jail for three misdemeanors stemming from an incident in which he attacked his ex-girlfriend with pepper spray. He was given an April report date, but the circuit court sua sponte delayed that date in recognition of the dangers posed to jail inmates by COVID. It has been delayed ever since. This is an appeal of the circuit…
State v. Valiant M. Green, 2019AP2150, petition for review of a summary order of the court of appeals granted 9/14/21; case activity (including briefs) Issue presented (from the petition): Did the affidavit in support of that search warrant fail to state probable cause to believe that Mr. Green had committed a crime and thus require suppression of the blood test result? Green’s neighbor called police and said Green was drunk and driving his truck. The responding officer saw Mr. Green in his truck in his own driveway; Green performed some maneuvers in the driveway but did not, while the officer…
State v. Richard Michael Arrington, 2019AP2065, review of a published court of appeals decision granted 9/14/21, case activity (including briefs) Issues (from the state’s PFR; response here): Did Arrington prove that his counsel was ineffective for failing to move to suppress the CI’s recordings and testimony on Sixth Amendment grounds? Did Arrington prove that the State violated his Sixth Amendment right to counsel? As we’ve written: Miller approached police saying that he thought he could get Arrington to tell him about his case.  In exchange for working as a confidential informant, Miller wanted consideration in his own…
State v. Manuel Garcia, 2021 WI 76, 9/24/21, affirming a published decision of the court of appeals; case activity (including briefs) As explained in our post on the published decision, the court of appeals held that a defendant’s voluntary statement obtained in violation of Miranda can’t be used in the state’s case-in-chief, even for impeachment if the defendant elects to testify. The supreme court granted the state’s petition for review. Justice Hagedorn withdrew from consideration of the case, and the remaining justices were evenly divided. Thus, the court of appeals decision is affirmed.…
State v. Theophilous Ruffin, 2019AP1046-CR, petition for review of an unpublished court of appeals decision granted 9/17/21; case activity (including briefs) Issue presented (from the State’s PFR) Is Ruffin entitled to an evidentiary hearing based on his postconviction allegation that his trial counsel was deficient for not pursuing a theory of self-defense? This is essentially a companion to State v. Spencer, a case in which the supreme court recently granted the state’s petition to review a court of appeals decision that ordered an evidentiary hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.…
State v. Donald P. Coughlin, 2019AP1876-CR, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity (including briefs) Issues presented (from State’s petition for review) 1. How does a court consider the theory of guilt in an evidence sufficiency claim when an inconsistency exists between a jury instruction and verdict? 2. Must a court accept a jury’s resolution of any vagueness in testimony as jury credibility and weight determinations and must a court then adopt the reasonable inferences that a jury may have drawn from the evidence? 3. Has Coughlin, as the defendant challenging the…
State v. Chrystul D. Kizer, 2020AP192-CR, petition for review of a published court of appeals decision granted 9/14/21; case activity (including briefs) Issue Presented (from the State’s PFR) Does § 939.46(1m) provide a victim of trafficking with a complete defense to first degree intentional homicide? The defense under § 939.46(1m) provides an affirmative defense for victims of human trafficking (or child sex trafficking in violation of § 948.051) for “any offense committed as a direct result of the violation of s. 940.302(2) or 948.051.” The circuit court read the statute very narrowly, ruling it was available to…
Outagamie County v. J.J.H., 2021AP244, District 3, 9/14/21 (one-judge decision; ineligible for publication); case activity Though J.J.H.’s primary challenge to the extension of his ch. 51 commitment is about the insufficiency of the evidence to prove dangerousness, the court of appeals (aided by the County’s concession) holds that the circuit court failed to make specific factual findings with reference to the statutory basis for its determination of dangerousness, as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. ¶11     …. Although the court did not specify the dangerousness standard…
Sheboygan County v. M.W., 2021AP6, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity Issue Presented (composed by On Point) What is the proper remedy when, in a ch. 51 recommitment proceeding, the circuit court fails to make specific factual findings with reference to the statutory basis for its determination of dangerousness as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277? As everyone handling ch. 51 cases knows, D.J.W. made a major, much-needed, beneficial change in the law governing ch. 51 recommitment proceedings. What D.J.W. didn’t…
State v. Scott William Forrett, 2019AP1850-CR, petition for review of a published decision of the court of appeals granted 9/14/21; case activity (including links to briefs) Issue presented Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search? As our post on the decision explained, the court of appeals held that using a driver’s refusal to submit to a blood draw (as opposed…
State v. Eric Jean Overvig, 2019AP1786, 9/8/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs) Overvig was arrested for OWI-3rd and promptly put himself into intensive alcohol treatment. When it came time for sentencing, the trial court imposed probation with 20 days of conditional jail time. Ordinarily, under Wis. Stat. § 346.65(2)(am)3., the minimum for OWI-3rd would be 45 days, but there’s an exception in Wis. Stat. § 346.65(2)(cm) pertaining to certain probationers who undergo drug treatment: for them, the minimum is 15. The state appeals, arguing Overvig didn’t qualify for this exception, but the…
Outagamie County v. L.C.E., 2021AP324, District 3, 9/8/21 (one-judge decision; ineligible for publication); case activity Once again, a circuit court fails to make the findings necessary to support the extension of a commitment under § 51.20, resulting in the reversal of the extension order. In Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942 N.W.2d 277, the supreme court said that “going forward [from April 2020] circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based.” As the…