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

Latest from On Point - Page 2

State v. Jimmie L. Blount, 2021AP1943-CR, District 2, 6/8/22 (one-judge decision; ineligible for publication); case activity (including briefs)
At one sentencing hearing on two different cases, the circuit court imposed on one case a 4-year bifurcated prison sentence—2 years’ confinement and 2 years’ extended supervision—and on the other ordered 3 years of probation. The court said the probation would be concurrent to the ES on the first case, which would’ve added another year onto the “global” disposition of…
Continue Reading Need to make immediate correction to illegal sentence wasn’t a new factor

State v. Travis R. Braly, 2021AP2086-CR, District 4, 6/9/22 (one-judge decision; ineligible for publication); case activity (including briefs)
Braly challenges the stop of the car he was driving, arguing it was clearly erroneous for the circuit court to find that the officer who stopped him had reasonable suspicion to believe he had not stopped prior to entering an intersection as required by § 346.46(1) and (2)(c). The circuit court rejects the claim based on the officer’s testimony,…
Continue Reading Circuit court’s findings on credibility, reasonable suspicion weren’t erroneous

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity
The crisp majority opinion of this 50-page split decision confirms a narrow but important point of law for ch. 51 cases. When an appellate court reverses a commitment order that has expired, the circuit court lacks competency to conduct remand proceedings in the case. The majority opinion does not address whether, in all cases, an appellate court must reverse a “D.J.W.
Continue Reading Defense win! Circuit courts lack competency to conduct remand proceedings after ch. 51 commitment expires

State v. Justin M. Church, 2021AP751-CR, District 3, 6/1/22 (not recommended for publication); case activity (including briefs)

At a pretrial hearing the circuit court made what the court of appeals characterized as an “ill-advised and troubling” attempt at humor (¶26), but it didn’t demonstrate that the circuit court prejudged the sentence it was going to impose or otherwise demonstrate a serious risk of actual bias.

Church was charged with obstructing and possession of methamphetamine. The latter…
Continue Reading Not funny, but not judicial bias, either

Jones v. Hendrix, USSC No. 21-857; cert. granted 5/16/22; Scotusblog page (containing links to briefs and commentary)
Question presented:

The question presented is whether federal inmates who did not—because established circuit precedent stood firmly against them—challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under § 2241 after this Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that…
Continue Reading SCOTUS may restrict federal habeas “safety valve”

Brown v. Davenport, USSC No. 20-826, 4/21/2022, reversing Davenport v. MacLaren, 964 F.3d 448 (6th Cir. 2020); Scotusblog page (including links to briefs and commentary)
What’s the standard of review for a federal habeas court considering whether a state court has properly found a constitutional error harmless? Well, actually, now a habeas petitioner must satisfy two different standards. He or she must show (1) that the state court unreasonably applied Chapman and (2) that the error was not…
Continue Reading One for the habeas nerds

State v. M.S.H., 2022AP369, 6/1/2022, District 1 (one-judge decision; ineligible for publication); case activity
The circuit court found M.S.H. to be an unfit parent on summary judgment. Turning to the dispositional phase, the court granted the state’s request to conceal from M.S.H. the identity of the person who the state considered likely to adopt her child.
It’s permitted, under Wis. Stat. § 48.355(2)(b)2., to conceal from a parent the identity of a foster parent, but only if…
Continue Reading Defense TPR win – trial court answered the wrong question in deciding potential adoptive resource shouldn’t be disclosed

State v. S.L.W., 2021AP1736 & 1737, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity
S.LW. appeals the termination of parental rights to her children. She argues her attorney failed to inform the jury of court-ordered services the Milwaukee County child-services agency didn’t provide. The court of appeals holds that if counsel performed deficiently in this regard, it didn’t affect the jury trial because the county did make a reasonable effort to provide the services, and because…
Continue Reading COA holds parent not prejudiced by TPR attorney on ordered services

State v. S.R., 2022AP293, 294 & 295, 6/1/22, District 1 (one-judge decision; ineligible for publication); case activity
S.R. appeals the termination of her parental rights to three of her children.  A jury found her unfit on two grounds: continuing CHIPS and failure to assume parental responsibility. She doesn’t challenge these findings on appeal; she instead attacks the circuit court’s determination that terminating her parental rights was in the children’s best interest.
S.R. doesn’t argue that the circuit court…
Continue Reading COA rejects challenge to best-interest determination in TPR

Outagamie County v. C.J.A., 2020AP2032, 4/12/2022, District 3 (recommended for publication); case activity
On April 12th the court of appeals issued an opinion holding that due process does not require a county to give particularized notice of the standard of dangerousness that a person will satisfy if treatment is withdrawn. It also found that special verdict given to the jury defective. The court of appeals reversed and remanded the case for a new trial on a recommitment that…
Continue Reading Reissued defense win on special verdicts for ch. 51 recommitment trials!

State v. Theophilous Ruffin, 2022 WI 34, reversing an unpublished court of appeals decision; case activity (including briefs)
This case doesn’t break new ground or develop existing law. Instead, it reverses the court of appeals for not applying the standard a circuit applies when deciding whether to hold an evidentiary hearing on a postconviction motion that alleges ineffective assistance of trial counsel.
Ruffin was charged with mayhem and sexual assault causing injury based on a physical altercation…
Continue Reading SCOW reverses court of appeals’ grant of a postconviction evidentiary hearing

Daniel Doubek v. Joshua Kaul, 2022 WI 31, 5/20/22, on certification from the court of appeals; case activity (including briefs)

A person convicted of a “misdemeanor crime of domestic violence” as defined under federal law, 18 U.S.C. § 921(a)(33)(A), is barred from possessing a gun under federal law and, therefore, from getting a license to carry a concealed weapon in Wisconsin, § 175.60(3)(b). A unanimous supreme court holds that a violation of § 947.01(1) is not…
Continue Reading Disorderly Conduct is not a “misdemeanor crime of domestic violence” that Precludes Granting a CCW License

On May 25, 2022, the court of appeals ordered publication of the following criminal law related decisions:
State v. Joseph M. Marks, 2022 WI App 20 (merging of separate audio track onto recording of child’s audiovisual statement didn’t make the statement inadmissible under § 908.08(3))
State v. Antonio Darnell Mays, 2022 WI App 24 (reckless endangering may be a predicate for felony murder)
State v. Hajji Y. McReynolds, 2022 WI App 25 (defendant’s postconviction motion wasn’t…
Continue Reading May 2022 publication order

Sheboygan County DHHS v. A.L.A., Sr., 2022AP267, District 2, 5/18/22 (one-judge decision; ineligible for publication); case activity
The circuit court didn’t err in granting the County’s motion for summary judgment on the grounds alleged in the TPR petition because A.L.A. raised no genuine issues of material fact in response to the motion.
The TPR petition alleged A.L.A. abandoned his daughter by failing to visit or communicate with her between June 1 and October 4, 2019. In response, he alleged…
Continue Reading Summary judgment in TPR case affirmed

State v. Nhia Lee, 2019AP221-CR, petition dismissed as improvidently granted, 5/24/22; case activity (including briefs)

SCOW presumably took this case in order to address one or both of these issues: (1) whether a circuit court must appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance; and (2) whether Lee was denied the right to counsel, due process and a speedy trial as he sat in…
Continue Reading SCOW Refuses to Decide Whether County Must Appoint Counsel When SPD Can’t