On Point

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On December 27, 2021, the court of appeals ordered publication of the following criminal law related decisions:
State v. Laverne Ware, Jr., 2021 WI App 83 (emergency aid exception justified entry into garage where corpse was found)
State v. Alex Scott Stone, 2021 WI App 84 (restitution award twice the value of the victim’s property was a-okay)
State v. Roman T. Wise, 2021 WI App 87 (rejecting multiplicity challenge to charges for fleeing officer)
State v.
Continue Reading December 2021 publication list

State v. Nestor Luis Vega, 2021AP126-CR, District 4, 12/23/21 (not recommended for publication); case activity (including briefs)
Vega testified at his trial on drug delivery charges and denied he had sold drugs to the informant and that the informant was not telling the truth. (¶12). On cross examination, the prosecutor, over defense counsel’s objections, asked Vega why he failed to give police his exculpatory version of events when he was arrested. (¶¶13-15). These questions
Continue Reading Defense win: Prosecutor improperly questioned defendant at trial about his exercise of right to remain silent when he was arrested

State v. Randy J. Promer, 2020AP1715-CR, 12/21/21, District 3 (not recommended for publication); case activity (including briefs).

Last term, SCOTUS rejected the idea that “community caretaking” is a standalone doctrine that justifies warrantless searches and seizures in the home. See Caniglia v. Strom, 141 S. Ct. 1596 (2021). Concurring opinions raised the possibility that the doctrine either no longer exists or applies only to the search of impounded vehicles.  See our post. The court of appeals
Continue Reading Community Caretaker Doctrine Still Applies to Traffic Stops

Waupaca County v. G.T.H., 2021AP1490, 12/23/21, District 4 (1-judge opinion, ineligible for publication); case activity
At Waupaca County’s request, the circuit court entered recommitment and medication orders against G.T.H. Six months later, the County conceded that the circuit court had failed to make the factual findings required by Langlade County v. D.J.W., 2020 WI 41, ¶¶3, 40, 391 Wis. 2d 231, 942 N.W.2d 277. The court of appeals reversed both orders but did not order remand proceedings.
Continue Reading COA dinks County for not addressing remedy for D.J.W. error

Wisconsin Justice Initiative v. Wisconsin Elections Commission, 2020AP2003, certification issued 12/21/21; case activity (including briefs)

Question certified (composed by On Point):
Was the single ballot question submitting the “Marsy’s Law” constitutional amendments to voters legally insufficient because it:

(1) does not “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment,” State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 201, 204 N.W. 803 (1925);

(2) is misleading, in that it contained “misinformation”
Continue Reading Court of Appeals asks SCOW to Review Challenge to Adoption of Victims’ Rights Amendment

State v. K.B.W., 2021AP47, District 1, 12/21/21 (one-judge decision; ineligible for publication); case activity
K.B.W. argues the circuit court erroneously exercised its discretion when it ordered him to register as a sex offender because it didn’t determine K.B.W.’s conduct was “sexually motivated,”  as required by § 938.34(15m)(am)1. Though the circuit court didn’t make an express finding on that point, the record shows the issue was addressed and that the circuit court therefore properly exercised its discretion.
K.B.W. was adjudicated
Continue Reading Circuit court’s order for juvenile to register as sex offender was properly exercise of discretion

Rock County v. P.P., 2021AP678, District 4, 12/16/21 (one-judge decision; ineligible for publication); case activity
P.P. challenges the sufficiency of the evidence elicited in support of the involuntary medication order issued in April 2020, along with the original commitment order. Both orders were set to expire in October 2020, so in September 2020 the County petitioned to extend them for 12 months. P.P. stipulated to the extension. (¶¶2-4). Because of the September 2020 extension of the medication
Continue Reading Challenge to medication order mooted by subsequently issued medication order

Ozaukee County v. J.D.A., 2021AP1148, District 2, 12/15/21 (one-judge decision; ineligible for publication); case activity
Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requires a circuit court ordering a ch. 51 recommitment petition to make specific factual findings with reference to the relevant subdivision paragraph of § 51.20(1)(a)2. on which the recommitment order is based. At “Jane’s” recommitment proceeding, the circuit court cited a subdivision paragraph—specifically, § 51.20(1)(a)2.e.—but said little about
Continue Reading Defense win: Extension of ch. 51 commitment not supported by sufficient findings as to each element of applicable dangerousness standard

State v. Carl Lee McAdory, 2020AP2001-CR, District 4, 11/18/21 (recommended for publication); case activity (including briefs)

McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This
Continue Reading Modification to Standard Jury Instruction on Driving While Impaired by Drugs Relieved State of Burden of Proof

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)
Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.
A jury convicted Christel of numerous crimes relating to two incidents
Continue Reading Strangulation and suffocation statute held constitutional

State v. B.M., 2021AP501-FT, 12/14/21, District 3 (1-judge opinion, ineligible for publication); case activity

A court found “Brandon” delinquent and placed him on juvenile supervision. It said that if the State wanted electronic monitoring it could “schedule further proceedings and we’ll take that up.” But then the written order directed that he “shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.”

Brandon first argued that a circuit
Continue Reading Defense Win! Court’s Dispositional Order Reversed for Conflict with Oral Pronouncement

State v. Nietzold, 2021AP21-CR, 12/9/21, District 4 (not recommended for publication); case activity (including briefs)

The State admits that it made a sentencing recommendation that breached the parties’ plea agreement. It claimed that the breach was not “material and substantial” because after the defendant objected it withdrew the recommendation. The court of appeals found the State’s breach to be “material and substantial” and the DA’s after-the-fact retraction of its comments and recommendation did not cure the breach.

Continue Reading Defense Win! DA Materially and Substantially Breached Plea Agreement

Marathon County v. J.A.E., 2021AP898, 12/7/21, District 3, (1-judge opinion, ineligible for publication); case activity

For an initial commitment under §51.20(1)(a)2.c., the circuit court must find clear and convincing evidence that a mentally ill person’s judgment is impaired such that there  is “a substantial probability of physical impairment or injury to himself or others.” The court of appeals held that James’s hallucinations during his examinations, his refusal of medication, and his use of methamphetamine satisfied this standard.

Continue Reading CoA Finds Sufficient Evidence for Initial Commitment Under 3rd Standard

State v. A.P., 2021AP1146-47, 12/7/21, District 1 (1-judge opinion, ineligible for publication); case activity

A.P. appealed orders terminating his parental rights to his two children. The court of appeals rejected his claim that the circuit court erroneously exercised its discretion when it refused to make his mother the guardian of the children and his new trial in the interests of justice claim.

As the disposition stage of this case, A.P. wanted the circuit court to grant guardianship of
Continue Reading CoA Rejects Proposed Guardianship and NTIJ Challenge to TPR Order

State v. Anne E. Streckenbach, 2020AP345-CR, 12/7/21, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

When a cop stopped Streckenbach for a traffic violation he observed signs of intoxication. He asked her the 24 questions that appear the DOT’s Alcohol/Drug Influence Report–questions that are usually asked after the driver has been arrested and Mirandized. Streckenbach couldn’t answer all of the questions, so the cop conducted field sobriety tests, which she failed. Did the cop’s questioning
Continue Reading Appeals Court Says Cops May Ask 24 Questions before Mirandizing OWI Suspects

This week the Wisconsin Supreme Court hears oral argument in 5 cases concerning public defense. They raise some hot-button issues. Here are the cases, issues, and the times for the arguments, which you can watch on Wisconsineye.org:

Wednesday, December 8th

9:45  State v. Christopher W. Yakich: When a defendant has been found not guilty by reason of mental disease or defect in two separate cases and is subject to two separate commitment orders, does the circuit court have
Continue Reading This Week in SCOW: Transgender Rights, Religion at Sentencing, and . . .