On Point

Latest from On Point

State v. John Mull, 2020AP1362, petition for review of a per curiam opinion granted, 5/18/22, case activity (including briefs)
Question Presented (from petition):

Under binding case law, in reviewing an ineffective assistance claim, the court must defer to a trial attorney’s strategic decisions. Here, the circuit court found Mull’s attorney used reasonable strategies in choosing a defense and handling cross-examination of a witness, and it deferred to the attorney’s strategy. But the court of appeals substituted its
Continue Reading SCOW to review deference owed to trial counsel’s strategic decisions

State v. Percy Antione Robinson, 2020AP1728-CR, certification granted 5/18/22; case activity (including briefs)

Question presented:
The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial
Continue Reading SCOW (again) Takes Up When the Right to Counsel Attaches

County of Milwaukee v. Roosevelt Cooper, Jr., 2021AP1224, 5/17/21, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)
Cooper wins a new trial because the trial court improperly amended the charge against him and denied him an opportunity to present evidence regarding the amended charge. Cooper was also denied the opportunity to cross-examine the testifying officer on both the original charge and the amended charge.
Milwaukee County charged Cooper with reckless driving–endangering safety, and his case
Continue Reading Pro se defense win! New trial ordered due to improper amendment of charge

State v. Green, 2022 WI 30, 5/13/22, limiting in part and affirming in part, a published court of appeals decision; case activity (including briefs)
Section 971.14(5)(a)1 provides that a defendant’s commitment for treatment to competency cannot exceed 12 months or his maximum sentence, whichever is less. So the State argued that if a defendant appeals an involuntary medication order, this period must be tolled, otherwise the appeal time will consume the commitment period. SCOW unanimously rejects that
Continue Reading SCOW U-turns, eliminates automatic stay for involuntary medication orders

State v. D.J.L., 2021AP436, 5/10/22, District 3 (1-judge opinion ineligible for publication); case activity

The State charged 17-year-old “David” with exposing himself to two girls (5 and 9) and sexually assaulting the older one. On appeal, he challenged the circuit court’s decision to waive him into adult court. The court of appeals held that the circuit court (1) appropriately applied §938.18(5)’s waiver criteria, (2) had the discretion to reject an expert opinion opposing waiver, and (3) did not
Continue Reading Appeals Court Upholds Waiver of Juvenile Into Adult Court

State v. Eric Trygve Kothbauer, 2020AP1406-CR, District 3, 5/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Kothbauer challenges his trial lawyer’s representation in a prosecution for operating while intoxicated and with a prohibited alcohol concentration. The court of appeals holds trial counsel wasn’t deficient or, even if he was, the deficiency wasn’t prejudicial.
First, Kothbauer claims trial counsel was ineffective for failing to move to suppress the results of the field sobriety tests and blood draw.
Continue Reading Counsel wasn’t ineffective in OWI/PAC prosecution

State v. Ryan L. Bessert, 2021AP1062-CR, District 3, 5/3/22 (not recommended for publication); case activity (including briefs)
The circuit court properly applied § 972.11(2m)(a) under the circumstances of this case when allowing the complaining child witness to testify via closed circuit television, so Bessert’s right to confrontation was not violated. In addition, assuming without deciding that Bessert’s right to a public trial was violated because the courthouse doors were locked when the circuit court issued its verdict, the
Continue Reading Statute permitting closed circuit audiovisual testimony of a child is still constitutional

State v. Joshua John Hansen, 2021AP1006 & 2021AP1620-CR, District 4, 5/5/22 (one-judge decision; ineligible for publication); case activity (including briefs)

A blue light illuminating the rear license plate is an apparent equipment violation and thus justified the stop of Hansen’s car. Once stopped, the officer had reasonable suspicion to extend the stop to investigate whether Hansen was operating while intoxicated.

Section 347.13(3) requires vehicles operating on Wisconsin highways to have a white light illuminating the rear license plate,
Continue Reading Blue Light Over Rear License Plate Provided Reasonable Suspicion for Traffic Stop

State v. A.A., 2022AP311, 5/3/22. District 1 (1-judge opinion, ineligible for publication); case activity
T.W. was born at 26 weeks with a host of serious medical problems. At discharge, he needed 24-hour care. T.W. couldn’t meet those needs because she had her own challenges.  She pled “no contest” to continuing CHIPS during the grounds phase of her TPR case. When the court terminated her rights to T.W., she appealed arguing that it had weighed the evidence incorrectly.
Continue Reading “Best interests” factors support TPR of child with exceptional medical needs

Milwaukee County v. A.J.G., 2021AP1338, 5/3/22, District 1, (1-judge opinion, ineligible for publication); case activity
When a circuit court orders a ch. 51 recommitment, it must specify which standard of dangerousness the patient will satisfy if treatment is withdrawn. Langlade County. v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 941 N.W.2d 277. This case holds that a circuit court must also specify the standard of dangerousness that the patient meets when ordering an initial commitment.
Continue Reading Defense win! Circuit courts must specify dangerousness standard for initial commitments

State v. Evan J. Schnoll, 2021AP1119-CR, 4/28/22; District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2020, Schnoll was charged with OWI 2nd. He challenged the validity of his prior OWI, which occurred in California, arguing that it could not be counted under Wisconsin law. The circuit court rejected his argument and counted the California conviction. The court of appeals granted Schnoll’s petition for leave to appeal but now affirms the circuit court.

This appeal
Continue Reading California “Wet Reckless” Offense Counts as Prior OWI in Wisconsin

Manitowoc County v. K.H., 2020AP2150 and Manitowoc County v. K.R., 2021AP90-93; 4/27/22; District 2 (1-judge opinion, ineligible for publication); case activity
K.R. appealed a December 2020 order instituting permanency plans for his 4 children. His mother also appealed one of the permanency plans. They claimed that they were denied their due process right to meaningful participation in the plan review hearing. The court of appeals gives no specifics. Instead, it holds that because the permanency plans are
Continue Reading COA dismisses TPR appeal as moot

State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)
When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.
Continue Reading Driver’s prior IID order hadn’t expired, so his prohibited alcohol concentration was 0.02, not 0.08

On April 28, 2022, the court of appeals ordered publication of the following criminal law related decisions:
Victor Ortiz, Jr. v. Kevin Carr, 2022 WI App 16 (limiting DOC authority to withhold prison wages for restitution)
Nancy Kindschy v. Brian Aish, 2022 WI App 17 (affirming harassment injunction against abortion protestor)
State v. Eric D. Bourgeois, 2022 WI App 18 (warrantless entry into hotel room was unlawful)
Continue Reading April 2022 publication order

The latest edition of SCOWstats reports that from 2019-2021 SCOW issued defense wins in 38% of 4th Amendment cases. Believe it or not, that is cause for celebration! It dwarfs the percentages of 4A victories in terms reaching back to 1995-1996. Historically, which justices have been most (and least) receptive to 4A arguments? Find out here.
Continue Reading SCOW Issues More Defense Wins in 4th Amendment Cases

State v. Rodney J. Ofte, 2021AP1302-CR, 4/21/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
After the State charged Ofte with OWI 2nd, he moved for suppression because Deputy Paulson had interrogated him in the back of a locked squad car without a Miranda warning. The circuit court suppressed all evidence from that point on–Ofte’s statement and the results of his FSTs and breathalyzer test. The State appealed arguing that Ofte was not in custody
Continue Reading Suppression affirmed! Officer interrogated defendant without Miranda warning