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State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR

The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.

Socha was convicted of OWI 5th or more in 2005 and sentenced to prison, consecutive to…
Continue Reading Post-Sentencing Vacatur of Prior OWIs May Constitute a New Factor Justifying Sentence Modification

State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)
Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and…
Continue Reading COA holds error in information didn’t invalidate repeater enhancer

Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster
A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when…
Continue Reading Defense win! Seventh Circuit affirms habeas grant, holds right to counsel attaches when CR-215 form completed

State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; case activity (including briefs, PFR, and response to PFR)
Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?
2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night…
Continue Reading Supreme court will review mine-run reasonable suspicion case

State v. Isaac M. Gabler, 2022AP995-CR, District 2, 04/19/23 (one-judge opinion, ineligible for publication); case activity
Gabler pled no contest to violating a temporary restraining order (TRO). The circuit court placed him on probation and denied his request to be eligible for expungement after determining that the public should be able to see that Gabler violated a TRO. Thereafter, the circuit court granted Gabler’s § 806.07 motion to vacate the underlying harassment injunction in part because the TRO…
Continue Reading COA Rejects Claim that Decision to Deny Expungement was Based on Inaccurate Information

Brown County v. Department of Human Services v. S.K., 2022AP1432, 4/18/202, District 3 (1-judge opinion, ineligible for publication); case activity
A court has grounds to terminate parental rights under §48.415(9m) when the parent commits a “serious felony against a child.” Here, the circuit court found that grounds existed to terminate Stephanie’s parental rights to Robert because she had been convicted of  child neglect resulting in death under but “as a party to the crime.” In a decision…
Continue Reading Defense Win! “Serious felony against a child” Finding Reversed in TPR Appeal

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State v. B.L., 2023AP8, 4/11/23, District 1 (1-judge opinion, ineligible for publication); case activity

“Barry” appealed an order terminating his parental rights to his 4 1/2-year-old daughter, Alice. He argued that the circuit court erred in admitting his criminal history during the grounds phase and erred in finding that it was in Alice’s best interest to terminate his rights. He lost on both issues.

Less than a year after Alice’s birth, Child Protective Services took custody of her…
Continue Reading Dad’s Criminal Record Appropriately Admitted into Evidence During Grounds Phase of TPR

County of Grant v. Brad Alan Hochhausen, 2022AP1065, 4/13/23, District 4; (1-judge opinion, ineligible for publication); case activity (including briefs)

Hochhausen was convicted of speeding under §346.57(5). The circuit court imposed a 15-day suspension of Hochhausen’s operating privileges and a civil forfeiture pursuant to §343.30(1n). On appeal he argued that §343.30(1n) does not apply to convictions under §346.57(5), The court of appeals agreed and reversed.

Section 343.30(1n) provides in relevant part: “A court shall suspend…
Continue Reading COA Reverses 15-day Suspension of Operating Privileges

Winnebago County v. L.J.F.G., Case No. 22Ap1589, District 2, 04/12/2023 (one-judge opinion, ineligible for publication); case activity
L.J.F.G.’s (Emily’s) appeal concerned a stayed order for involuntary administration of psychotropic medication under Wis. Stat. § 55.14. While the court affirms the order and concludes that the evidence was sufficient to satisfy the statutory standard, it also noted that “the County certainly could have done a better job presenting evidence” and that the testimony was “hardly a model of clarity…
Continue Reading COA Affirms Involuntary Med Order, but ‘Strongly Encourages’ Counties to ‘Take More Care…In the Future’

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State v. Kit R. Stilwell, 2022AP1734-CR, District 2, 4/05/23 (1-judge opinion, not eligible for publication); case activity (including briefs)

After summarizing an “inordinate[ly]” complicated set of facts in an otherwise simple bail jumping case, the court of appeals notes that because he failed to file a reply brief, the state’s arguments were conceded by Stilwell. Recognizing that Stilwell was unrepresented and the “obligation on the part of a court to make reasonable allowances to protect pro se litigants,”…
Continue Reading Appeals Court Rejects Pro Se Defendant’s Jurisdictional and Legal Process Claims

State v. Jesse E. Bodie, 2021AP1656-CR, District 4, 4/13/23 (not recommended for publication); case activity (including briefs)

A state patrol officer unlawfully frisked Bodie before allowing Bodie to sit in his squad car because, under the circumstances of this case, the officer didn’t have an objectively reasonable basis to suspect Bodie was armed and dangerous.

Bodie’s car caught fire and and burned up on I-94. Bodie told one of the officers called to the scene that a friend…
Continue Reading Frisking Person Before Allowing Him to Sit in Squad Car was Unlawful

State of Wisconsin ex rel. Antonio S. Davis v. Circuit Court for Dane County and Honorable Ellen K. Berz, 2022AP1999-W, PFR granted 03/31/2023; case activity (including briefs, petition for review, and state’s response)

Davis was arrested and charged with two misdemeanors in Dane County. He applied for an attorney through the State Public Defender a day after his arrest, but made his initial appearance before a court commissioner without appointed trial counsel. That same day, Davis’ case was…
Continue Reading SCOW to Decide whether to Relax Strict Application of Statutory Substitution Deadline

State v. Antwan Eugene Gill, 2022AP654-Cr, 4/6/23, (1-judge opinion, ineligible for publication), case activity (including briefs)
Gill was convicted for possession of THC and for operating a vehicle with a detectable amount of THC in his blood.  He argued that his trial lawyer was ineffective for failing to move for suppression of the results of field sobriety and blood tests and for failing to exploit inconsistences between an officer’s testimony and his report and squad-cams footage.  The court…
Continue Reading COA denies IAC claims re failure to move for suppression and to cross-examine officer effectively

Law theme, mallet of the judge, law enforcement officers, evidence-based cases, and documents taken into account.
Law theme, mallet of the judge, law enforcement officers, evidence-based cases, and documents taken into account.

State v. Robert K. Nietzold, Sr., 2023 WI 22, 03/28/2023, reversing an unpublished court of appeals opinion; case activity (including briefs)

Pursuant to the plea agreement, the state agreed to “not recommend a specific term of imprisonment.” At sentencing, the state argued for 27 years imprisonment, consisting of 12 years initial confinement and 15 years extended supervision. Nietzold objected, was denied a postconviction motion hearing in the circuit court, but the court of appeals reversed and ordered…
Continue Reading Unanimous SCOW Holds that State “Cured” Plea Breach and Reverses COA Order for Resentencing

Richard Shirley v. Lizzie Tegels, 7th Circuit Court of Appeals No. 18-1713, 3/8/23
Shirley was shackled while he testified at his jury trial for 1st degree reckless homicide. In this federal habeas appeal, he argued that the shackling violated his constitutional right to present a complete defense. The 7th Circuit denied relief because no SCOTUS case clearly establishes that shackling a defendant while he is testifying violates that right.
As the 7th Circuit repeatedly notes, the record doesn’t…
Continue Reading 7th Circuit: Shackling during trial didn’t undermine right to present complete defense

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the…
Continue Reading SCOW allows DAs to comment indirectly on a defendant’s decision to remain silent