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. M.P.H.-R., 2021AP1628, 11/23/21, District 1 (1-judge opinion, ineligible for publication); case activity

M.P.H.-R gave birth to A.S.H. in 2011 when she was just 14 years old. Since then both mother and daughter have suffered mental health problems. They lived together briefly twice over the intervening 10 years. Otherwise, for 7 years A.S.H. has lived with a foster family.  The trial court terminated M.P.H.-R.’s parental rights based on §48.426(3)‘s “best interests of the child” factors. The…
Continue Reading COA Affirms TPR Based on Best Interests of the Child

Have your mentally ill clients been denied medication or over-medicated? Have they been placed in seclusion or denied access to a phone or to interpreters?

Section 51.61 establishes “patients rights” for persons receiving services for mental illness, developmental disabilities, or drug dependency, pursuant to Chapters 48, 51, 55, 971, 975 or 980. When your client says that their rights are being violated, consider sending them a copy of Disability Rights Wisconsin’s new Do It Yourself Guide to Filing a …
Continue Reading A New Guide for Clients Who are Committed

Waukesha County v. E.J.W., 2020AP370, 11/23/21, reversing an unpublished court of appeals’ opinion; case activity

This 4-3 “defense win” delivers a 1-2-3 punch! The decision:  (1) holds that a person undergoing commitment has the right to demand a jury 48 hours before the time set for his final hearing–even if the hearing is rescheduled; (2) reverses a recent, published court of appeals opinion to the contrary; and (3) resolves a split over the proper remedy for cases…
Continue Reading SCOW Issues Defense Win on Chapter 51 Jury Demands

State v. Roman T. Wise, 2020AP1756-CR, 11/16/21, District 1 (recommended for publication); case activity (including briefs)

Wise was convicted of 4 counts of fleeing or eluding an officer under §346.04(3). He claimed trial counsel was ineffective for failing to seek dismissal of 3 of his 4 charges on the grounds that they were multiplicitous. The court of appeals held that the charges were not multiplicitous because each one required proof of a different element or fact. Thus,…
Continue Reading Multiple Charges for Fleeing an Officer Weren’t Multiplicitous

State v. Alex Stone Scott, 2020AP1661-CR, 11/17/21, District 2 (recommended for publication); case activity

This split, recommended-for-publication opinion, merits further review.  Scott drove M.S.’s truck without her permission and damaged it in the process.  Undamaged, the truck’s Kelly Bluebook value was $2,394. M.S. testified that she did not want to repair the truck, but the circuit court nevertheless awarded restitution based on the cost of repair: $5,486.37. It also found that Scott, who was mentally ill and living…
Continue Reading Split Opinion Affirms Restitution Award Double the Value of Victim’s Property

State v. Jeffrey L. Moeser, 2019AP2184-CR, petition for review of an unpublished decision granted 11/18/21 ; case activity (including briefs)

Issue presented (from the petition):

Whether the ‘Oath’ requirement under the Fourth Amendment of the US Constitution and Article 1, Section 11 of the Wisconsin Constitution require a police officer to swear an oath to the truthfulness of an affidavit used to obtain a search warrant to conduct an evidentiary blood draw in a criminal OWI matter?
As we…
Continue Reading SCOW Will Decide Whether Officer Must Orally Swear Truth of Warrant Affidavit

State v. Christopher D. Wilson, 2020AP1014-CR, petition for review of an unpublished decision granted 11/17/21; case activity (including briefs)

Issue presented (from the petition):

Did the police have implicit license to enter the backyard of Mr. Wilson’s home through a gated privacy fence?
Someone called 911 to report erratic driving; the caller relayed that the vehicle had parked in an alley, and the driver had opened a gate and entered the fenced-in backyard. The police saw the gate in…
Continue Reading SCOW Will Review Police “Knock and Talk” in Fenced Backyard

State v. Laverne Ware, Jr., 2020AP1559, 11/4/21, District 4 (recommended for publication; case activity (including briefs)

When the parties filed their initial briefs in this appeal, it was a community-caretaker case. But during briefing, the Supreme Court decided Caniglia v. Strom, which made clear that this doctrine doesn’t permit searches in the home (in the process invalidating some Wisconsin cases). So now–as the Caniglia concurrences foretold–it’s instead a case about the “emergency aid exception.”

Per the…
Continue Reading COA Holds Emergency Aid Exception Justified Entry into Garage Where Corpse was Found

State v. Joseph L. Slater, 2020AP1936, 11/2/2021, District 3 (recommended for publication); case activity (including briefs)

Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on…
Continue Reading Defense Win! COA Holds Imposed-and-stayed Prison Sentence Begins on Receipt at Dodge

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)

A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault.  Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and…
Continue Reading COA Splits Over Suggestive Photo Array and Ineffective Assistance of Counsel

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the…
Continue Reading Federal Court Grants Habeas Relief for Violation of Right to Counsel and Right to Go Pro Se

State v. T.E.-P., 2021AP1473, 11/9/21, District 1 (1-judge, ineligible for publication); case activity

There’s no online access to briefs in TPR appeals, so we can’t check the court of appeals’ characterization of T.E.-P.’s appeal.  Allegedly, she conceded that the circuit considered all 6 “best interest of the child” factors in §48.426(3) and asked the court of appeals to reweigh them. The court of appeals deferred to the circuit court’s weighing of the factors and evidence under State v. …
Continue Reading COA Affirms Termination of a “Great Mom’s” Parental Rights

State v. Terence S. O’Haire, 2021AP564, District 4, 11/4/21, (i-judge opinion, ineligible for publication); case activity (including briefs)

O’Haire argued that an officer coerced his consent to a PBT , so its results and his refusal to submit to an evidentiary breath test should have been suppressed. The officer told O’Haire that he didn’t have to consent to a PBT, but then the officer threatened to take O’Haire to jail if he refused. When O’Haire hesitated, the officer…
Continue Reading Defendant’s Consent to a PBT was Voluntary

State v. Thomas Louis Giegler, 2021AP952-CR, 11/2/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Unbelievable. A jury convicted Geigler of knowing violation of a TRO. The court of appeals now reverses the conviction because the State’s evidence was insufficient to prove guilt beyond a reasonable doubt. It remands the case with instructions for the circuit court to enter a judgment of acquittal on that charge.

To convict Giegler under §813.12(8)(a), the State had…
Continue Reading Defense Win! State’s Evidence of Knowing Violation of TRO Insufficient

State v. P.G., 2021AP1231, 2021AP1232, & 2021AP1233, District 1, 11/2/21 (one-judge decision; ineligible for publication); case activity

P.G.’s challenges the sufficiency of the TPR petitions against him and claims the COVID epidemic affected his ability to meet the conditions of return. His arguments are in vain.

First, he argues a TPR petition must met the same requirements as a criminal complaint and CHIPS petition—namely, it must contain sufficient facts or give rise to reasonable inferences to establish probable…
Continue Reading TPR Petitions were Sufficiently Pled, and COVID-19 Didn’t Provide a Defense to the Parent’s Failure to Meet the Conditions of Return