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. Morris V. Seaton, 2021AP1399-CR, certification granted 3/24/23; case activity (including briefs)
Question presented (from the court of appeals’ certification):

In light of the 2014 amendment of WIS. STAT. § 904.04(2)(b) (2019-20), codifying and expanding the “greater latitude” rule and the Wisconsin Supreme Court’s decision in State v. Dorsey, 2018 WI 10, ¶¶23-25, 379 Wis. 2d 386, 906 N.W.2d 158, interpreting and applying that amendment, are State v. Alsteen, 108 Wis. 2d 723, 324 N.W.2d…
Continue Reading SCOW takes up §904.04(2)(b) and the “greater latitude” rule

Waukesha County DHHS v. M.A.S., 2022AP877, District 2, 3/22/23 (one-judge decision; ineligible for publication); case activity
R.B. (Rose), a daughter of M.A.S. (Mary), filed an appeal of an order granting the County’s petition for a protective placement of Mary. The court of appeals holds Rose doesn’t have standing to appeal the order.
Section 55.20 identifies four persons who may appeal a protective placement order: 1) “the subject of the petition”; 2) “the individual’s guardian”; 3) “any petitioner”; or…
Continue Reading Daughter lacks standing to challenge mother’s protective placement

State v. Y.P.V., 2022AP1935-36, 3/21/23, District 1 (1-judge opinion, ineligible for publication); case activity
The court of appeals reversed and remanded this TPR for two reasons. First, the mom made a prima facie case that her “no contest” plea to grounds was not knowing, intelligent, and voluntary because, during the plea colloquy, the circuit court misstated the law that would apply during the disposition. Then, at the disposition phase, the circuit court failed to apply the proper standard…
Continue Reading Defense win! TPR reversed due to errors in plea colloquy and disposition

State v. Jenny E. Clark, 2022AP495-CR, District 4, 3/23/23 (one-judge decision; ineligible for publication); case activity (including briefs)
Clark’s Minnesota administrative suspension for operating with a prohibited alcohol concentration counts as a prior OWI conviction under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213.
Clark was charged with OWI 2nd based on a prior Minnesota conviction. When she filed a motion to prohibit use of that conviction on the ground her waiver…
Continue Reading Minnesota administrative suspension counts as prior OWI

The filing of an Emergency Protective Placement petition under §55.135(1) triggers a probable cause hearing within 72 hours. Once the court finds probable cause it may order a temporary protective placement for up to 30 days pending a hearing on a permanent protective placement. Wis. Stat. §55.135(5). Sometimes the client wants to exercise her right to an independent comprehensive evaluation under §55.10(4)(e) and §55.11(2), yet has trouble finding a doctor who can complete it within 30 days. May…
Continue Reading FAQ: May a person stipulate to extend a temporary protective placement?

Marathon County v. T.R.H., 2022AP1394, 3/14/23, District 3 (1-judge opinion, ineligible for publication); case activity
Counties often seek recommitment under §51.20(1)(a)2.c, the third standard of dangerousness. It is the easiest standard to satisfy–especially at the recommitment stage. But not this time. The court of appeals held that the county can’t just offer testimony that, at some point in the past, the person failed to care for himself, experienced delusions, and struggled with social interactions when not on…
Continue Reading Defense win! Evidence insufficient for 3rd standard recommitment

Brown County v. J.J., 2021AP1079, District 3, 3/7/23 (one-judge decision; ineligible for publication); case activity

Before an Indian child subject to a CHIPS proceeding is placed out of the home of his or her parent or Indian guardian, § 48.028(4)(d)2. and the federal Indian Child Welfare Act (ICWA) both require, among other things, proof by clear and convincing evidence that “active efforts, as described in [§ 48.028(4)](g) 1., have been made to provide remedial services and…
Continue Reading “Active efforts” to Preserve Family Required by ICWA are measured at Time of Disposition

State v. Linsey Nichole Howard, 2022AP1608-CR, District 2, 03/08/2023, (one-judge decision, ineligible for publication) case activity
Prior to pleading guilty to operating a vehicle with a restricted, controlled substance as a second offense, Howard filed a motion to suppress, claiming that the arresting officer lacked probable cause. The court of appeals affirms the denial of Howard’s motion based on the following circumstances: (1) she was driving at 12:53 a.m. without headlights on, (2) she was confused about where…
Continue Reading COA knocks down straw man and affirms denial of defendant’s motion to suppress

Milwaukee County v. D.H., 2022AP1402, 3/7/23, District 1 (1-judge opinion, ineligible for publication); case activity
To obtain an involuntary medication order, a county must satisfy the multi-step test for incompetency to make medication decisions in §51.61(1)(g)4. The first step requires the county to prove that the person received a “reasonable explanation” of the advantages, disadvantages, and alternatives to medication. The examiner can’t just testify that she complied with the statute. She must tell the court what she told…
Continue Reading Defense win! County failed to prove examiner gave “reasonable explanation” of medication

Outagamie County v. L.X.D.-O, 2020AP1806, 3/7/23, District 3, (recommended for publication); case activity
Unfortunately, the court of appeals just turned Chapter 51 and due process upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns an initial commitment. So the court of appeals says when reviewing the sufficiency of evidence, it may consider an examiner’s report that the county neglected…
Continue Reading COA: for initial commitments, counties needn’t move examiners’ reports into evidence

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)
Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued…
Continue Reading Defense win – tenant had standing to challenge unlawful search of basement

State v. Oscar C. Thomas, 2023 WI 9, 2/21/23, affirming a published court of appeals decision; 2020AP32; case activity (including briefs)
As on quite a few previous occasions, our high court has issued a decision without a single majority one can cite for the holdings on each issue presented. Unlike on some of those occasions, this time the lead opinion does not purport to make law it cannot make; it instead signposts which opinion is law for…
Continue Reading With three separate writings, SCOW upholds COA on confrontation

State Public Defender attorneys and practice group coordinators sometimes field recurring questions about a point of law or a problem popping up in cases around the state. So we at On Point are experimenting with FAQ posts. From time to time we will post a FAQ along with an answer. If you encounter the issue in the future, you will be able to find the FAQ post on the Archive page under the corresponding topic and under the “FAQ…
Continue Reading Introducing FAQ posts!

Mandatory Circuit Court Form CR-206 suggests that in a criminal case the circuit court may order involuntary medication for an incompetent defendant because he is dangerous. Is the form correct? No, under the current state of federal and Wisconsin law, a criminal court may not order the involuntary administration of antipsychotic for an incompetent defendant based on dangerousness.
Let’s start with SCOTUS case law. When a criminal court declares a defendant incompetent to proceed under §971.14, the State…
Continue Reading FAQ: May a criminal court order involuntary medication based on a defendant’s dangerousness?

State v. Debra L. Rippentrop & Steven E. Rippentrop, 2022AP92-CR & 2022AP93-CR, District 4, 2/23/23 (recommended for publication); case activity (including briefs) 2022AP92-CR and 2022AP93-CR

The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.

In 2019 the Rippentrops were charged with physical abuse of their son based on allegations first made in 2014 and 2015. They…
Continue Reading Nonprosecution Agreement Isn’t Void for Violating Public Policy

USA v. Jeremy D. Banks, Appeal No. 22-1312 (7th Cir. Feb. 13, 2023).

Banks, a convicted felon, posted a video on Snapchat showing himself barbequing on his front porch with a gun nearby. Officers saw the video and raced to his house without a warrant. They walked onto Banks’s porch, caught him by surprise, engaged in a tussle, and arrested him in his front room where they spotted a box of ammunition and found a semi-automatic pistol in…
Continue Reading Officers’ Entry onto Front Porch Violated the Fourth Amendment