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

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Outagamie Countyv. G.S., 2019AP1950, 1/20/21, District 3 (1-judge opinion, ineligible for publication); case activity “George” called law enforcement claiming to be a federal authority who wanted to make a citizen’s arrest of some duck hunters. When a deputy arrived at the lake he saw George in a boat with 2 encased firearms about 100 yards from shore where a group of duck hunters were upset about George’s verbal encounter with them. George never pointed a gun at anyone.  Based on this evidence, a doctor’s report, and substantial hearsay evidence, the circuit court committed Geoge under the 3rd standard of…
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State v. Todd N. Trieblod, 2019AP1209-CR, 1/20/21, District 3 (recommended for publication); case activity (including briefs) Triebold was convicted of child sexual assault in Wisconsin and subject to lifetime sex offender registration. He moved to Minnesota and notified the Wisconsin DOC of his address. But he moved again and failed to notify either Wisconsin or Minnesota of his change in address. He was separately convicted of violating the sex offender registration laws of Minnesota and Wisconsin. This appeal concerns his challenges to his Wisconsin conviction. The court’s decision is recommended for publication. Triebold argued that Wisconsin circuit courts lacked…
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State v. Nhia Lee, 2019AP221-CR, District 3, 1/20/21, (recommended for publication), case activity (including briefs) This is an important decision for areas of Wisconsin where there is a shortage of defense lawyers. In 2018, when the private bar rate was $40, Lee was charged with felonies in Marathon County and then held for 101 days without counsel while the SPD contacted over 100 attorneys to take his case. Meanwhile, the circuit court repeatedly extended the 10-day deadline for holding a preliminary hearing. He finally got one 113 days after his initial appearance. In a decision recommended for publication, the…
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State v. Christopher W. Yakich, 2019AP1832-CR & 2019AP1833-CR, District 4, 1/14/21 (not recommended for publication); case activity (including briefs) A defendant who is found not guilty by reasons of mental disease or defect (NGI) of a crime may be committed under § 971.17 for the maximum term of confinement (for felonies under Truth-in-Sentencing II, § 971.17(1)(b)) or two-thirds the maximum term of imprisonment (for misdemeanors or pre-TIS II felonies, § 971.17(1)(a) and (d)). The court of appeals holds that if a defendant is found NGI for more than one offense, the maximum term of commitment is determined by…
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Click here to read Orrin Kerr’s analysis of a recent 4th Amendment case from the 5th Circuit. The government properly obtained a warrant to search for text, messages, call logs, and contacts on a cell phone, but not for evidence in the form of photos. Those were suppressed and the conviction overturned. Kerr argues that the 5th Circuit reached the right result for the wrong reason. …
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State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs) This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial. SCOW reviewed this case in 2015. It involves a claim that Wilson was convicted of a homicide committed by a 3rd party…
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United States v. Palomar-Santiago, No. 20-437, cert granted 1/8/21; SCOTUSblog page Question presented: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on a misclassification of a prior conviction. Under 8 U.S.C. §1326(d), a district court must dismiss an indictment for illegal reentry after deportation if the defendant proves that: (1) he exhausted his administrative remedies for seeking relief against the deportation order, (2) he was improperly deprived of the opportunity for judicial review at the deportation hearing, and (3) the deportation order was fundamentally unfair. In the 9th…
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United States v. Gary, No. 20-444, cert granted 1/8/21; SCOTUSblog page Question presented: Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings. This is a companion to Greer. Gary pled guilty to 2 counts of felon in possession of contrary to…
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Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page Question presented:  Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial. Generally, when defense counsel fails to object to an error he or she forfeits the issue for appeal. However, an appellate court may exercise its discretion to correct a forfeited error where: (1)…
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State v. Leevan Roundtree, 2012 WI 1, 1/7/21, affirming a per curiam court of appeals opinion, 2018AP594-CR; case activity (including briefs) In 2003, Roundtree was convicted of multiple felony counts of failure to pay child support. Twelve years later, police executed a search warrant at his home and found a firearm and ammunition under his mattress. He pled guilty to one count of felon in possession. On appeal, he argued that §941.29(2)(2013-2014), which barred him from possessing a firearm, is unconstitutional as applied to his case. The statute has no time limit and draws no distinction between…
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State v. J.T., 2020AP1151, 1/5/21, District 1 (1-judge opinion, ineligible for publication); case activity E.W. was placed in foster care shortly after birth. Her dad, J.T., was incarcerated then. He remained so a year later when the State filed a TPR petition against him on the grounds that he failed to establish a substantial relationship with E.W. and failed to exercise significant responsibility for her. According to the State, J.T. failed to attend E.W.’s medical appointments and participate in decisions about her education. He pled no contest, and the circuit court terminated his parental rights. Plea withdrawal. On appeal,…
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State v. Anthony M. Schmidt, 2020AP616-CR, petition for bypass granted 12/28/20; case activity Does Wis. Stat. §973.042 (the child pornography surcharge statute) permit the circuit court to impose a child pornography surcharge for an offense that is “read in” for sentencing purposes? Is the child pornography surcharge a punishment that must be explained during a plea colloquy? If so, was Schmidt entitled to a hearing on his claim that the plea colloquy was deficient in this case? The plain language of §973.042 provides that the court shall impose a surcharge for each image associated with a crime under s. 948.05…
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State v. Brian v. Rotolo, 2019AP2061-CR, petition for review granted 12/28/20; case activity Issue presented (adapted from the petition for review): In State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552, SCOW held that the test for Fifth Amendment Miranda custody is whether “a reasonable person would not feel free to terminate the interview and leave the scene.” Does this test for determining Miranda custody also apply when police legally detain a suspect under Terry? This case asks SCOW to address the confusion caused by its messy decision in State v. Dobbs…
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State v. Savage, 2020 WI 93, 12/23/20, reversing a court of appeals opinion; case activity (including briefs). Savage, who was homeless, claimed he received ineffective assistance of counsel when his lawyer failed to advise him that he had a defense under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787 before he pled guilty to violating the sex offender registry rule that he provide his address to the DOC. According to Savage and the court of appeals, Dinkins held that a homeless person is exempt from sex offender registration requirements.  In a unanimous opinion,…
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Winnebago County v. D.D.A., 2020AP1351, District 2, 12/23/20 (one-judge decision; ineligible for publication); case activity The court of appeals rejects D.D.A.’s challenges to the sufficiency of the petition to extend his ch. 51 commitment and to the evidence presented at the extension hearing. First D.D.A. argues the petition to extend didn’t specify whether the County was seeking to invoke to recommit him under § 51.20(1)(am) or (ar). ¶9     As an initial matter, we agree with the [County] that D.D.A.’s arguments regarding the petition itself are forfeited because he did not complain of the issue in the…