Wisconsin courts apply a robust guilty-plea waiver rule: in general, a plea will block a defendant from appealing any issue litigated before the plea. There is one important statutory exception: Wis. Stat. § 971.31(10) entitles a defendant to appeal the denial of a motion to suppress evidence or a motion to exclude his or her own statements, guilty plea or no. But other matters that may have arisen–pre-trial evidentiary decisions, fights over discovery, etc.–are typically not reviewable unless the defendant insists on a trial. Read more
You know, those semis that carry like 6 or 10 cars. Kirk owned a 1989 Jaguar that was riding on such a vehicle along with several other cars. A Kansas trooper pulled the truck over and asked to inspect the driver’s paperwork. The trooper would testify that the driver’s logbook had an entry he found strange: a two-day stay in Reno, Nevada after the truck was loaded–a stop the trooper called “not normal.” He also didn’t buy the driver’s explanation that he had spent those two days trying to find tires for his truck. Read more
Barton was convicted at trial of three counts involving battery of his adult stepson. He argues the trial court should have granted the mistrial he asked for when his daughter testified she was afraid that something had happened because “things had happened before.” He also asserts the court should have instructed the jury on self-defense. The court of appeals rejects both arguments. Read more
D.Q. fathered a child, K.C., with a woman here called N.E.C. D.Q. wasn’t involved with K.C. for three years after her birth; he had reason to suspect he was the father but did not seek to confirm this by testing. During that time, K.C. was taken from N.E.C.’s home for various intervals via CHIPS proceeding. N.E.C. also became involved with another man who played a substantial part in caring for K.C. Read more
State v. Scott W. Heimbruch, 2019AP1857, District 4, 9/24/20, (recommended for publication); case activity (including briefs)
When an officer arrests a driver either for OWI or for causing death or great bodily harm without suspicion of OWI and requests a chemical test, he must read the driver the legislatively prescribed “Informing the Accused” form. See §343.305(3) and (4). The form describes the potential penalties the driver faces for refusing the chemical test. In 2017, the Wisconsin Supreme Court declared that the form’s information for drivers accused of causing death or great bodily harm without suspicion OWI was inaccurate. See State v. Blackman, 2017 WI 77, ¶¶5, 38, 377 Wis. 2d 339, 898 N.W.2d 774. Unfortunately, the legislature has never bothered to change the form. Read more
Leister, charged with intentional mistreatment of animals, wanted a lawyer but had trouble retaining one. After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion. While the circuit court ruled against him, the court of appeals reversed and remanded the case for a new trial.
The State conceded that Leister did not receive the on-the-record colloquy required by State v. Klessig, 211 Wis. 2d 194, 206, 212-213, 564 N.W.2d 716 (1997). The colloquy must show that the defendant :
(1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him [or her], and (4) was aware of the general range of penalties that could have been imposed on him [or her].” Where a circuit court fails to conduct such a colloquy and the defendant files a motion for postconviction relief, the court must hold an evidentiary hearing to determine whether the waiver was knowing, intelligent, and voluntary. At such a hearing, the burden falls on the State to overcome the presumption of non-waiver by proving by clear and convincing evidence that the defendant knowingly, intelligently, and voluntarily waived his or her constitutional right to counsel. Id. If the State fails to meet its burden, the defendant “is entitled to a new trial.” Opinion, ¶12 (quoting Klessig).
Despite the circuit court’s failure to conduct this colloquy before trial, the State had a second chance to prove a knowing, intelligent, and voluntary waiver at a postconviction evidentiary hearing, where it bore the burden of proof. But it did not offer any evidence at all. It simply argued that Leister had represented himself in other cases and pointed out that he had obtained an acquittal on one of his charges. This information is not relevant to the Klessig analysis. That’s one reason the court of appeals reversed. Opinion, ¶17.
The other reason is that the State’s appellate brief did not cite to the record or to supporting legal authority. The State’s entire response brief was just 2.5 pages long The court of appeals refused to develop the State’s arguments for it and so reversed based on Klessig and remanded the case for a new trial. Opinion, ¶¶19-20.
To establish grounds for terminating T.F.’s parental rights, the Department sought to prove that she had abandoned her daughter, Allie, for period of 6 months or longer. It filed a successful motion in limine seeking to exclude evidence of T.F.’s communications and visits with her daughter occurring after it filed its TPR petition. The court of appeals held that the circuit court erred in excluding this evidence. It reversed and remanded the case for a new jury trial on grounds for the TPR. Read more
Anyone who loves an alcoholic parent will find this decision heart-wrenching. J.M.W. has a close relationship with her 11 year old daughter, N.M. Unfortunately, J.M.W. also struggles with alcoholism and unstable housing, so the circuit court terminated her parental rights. Both mother and daughter appealed and challenged the circuit court’s “best interests of the child” analysis. In two overlapping decisions, the court of appeals called this a “difficult” case, but nevertheless affirmed. Read more