by admin
on January 28, 2010
court of appeals decision; for Puchacz: William M. Hayes
Resp Br
OWI Enhancer, § 346.65(2) – Out-of-State Conviction
Michigan convictions for driving while visibly impaired may be counted as Wisconsin OWI priors, given “broad interpretation and application of the final phrase in Wis. Stat. § 343.307(1)(d) and the public policy supporting our drunk driving laws,” ¶¶12-13.
Traffic Stop – Deviating from Center Line, § 346.05
Crossing center line, even if but “momentary” provides probable cause for a stop, ¶15-20.
State v. Michael L. Popke, 2009 WI 37, State v. Robert E. Post, 2007 WI 60, discussed; former described as “not only more on point than Post, but (as) clarify(ying) the Post holding,” ¶15.
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by admin
on January 28, 2010
court of appeals decision (1-judge; ineligible for publication)
Vehicle Stop – Rear Plate State Name Obscured
Stop OK where rear plate bracket obscured name of state.
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by admin
on January 28, 2010
court of appeals decision (1-judge; ineligible for publication)
TPR – Uniform Child Custody Jurisdiction and Enforcement Act
“Wis. Stat. § 822.23 does not require a court to dismiss a custody action as soon as it discovers that another state had entered a custody order for the child when the action was commenced in this state. It prohibits the court from modifying the custody determination of another state unless the other court has declined jurisdiction,” ¶15.
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by admin
on January 28, 2010
court of appeals decision; for Fortun: Todd E. Schroeder
AG’s BiC; Resp Br; Reply
Forgery, § 943.38(1) – Altered Prescription
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).
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by admin
on January 28, 2010
court of appeals decision (1-judge; ineligible for publication)
Sanctions – Defendant’s Failure to Appear – Default Judgment
Court not empowered to enter default judgment in civil claim where defendant appears by counsel but not in person; odd discussion of “puerile” “tactic of some traffic defense lawyers to make the government prove identity without the defendant being in the courtroom.”
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by admin
on January 28, 2010
court of appeals decision (1-judge; not eligible for publication)
Traffic Stop
Reasonable suspicion to stop vehicle for violating § 346.31(2), right hand turns to be made close as practicable to right-hand edge curb or highway.
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by admin
on January 28, 2010
court of appeals decision (3-judge; not recommended for publication)
Guilty Plea – Hearing on Motion to Withdraw
Ruby satisfied burden of production, therefore was entitled to postconviction hearing, on plea-withdrawal due to ignorance of elements and/or maximum penalty.
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by admin
on January 28, 2010
court of appeals decision; for Jeffrey A.W.: Hans P. Koesser
Resp Br; Reply
Counsel – Adequacy of Investigation
Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although failure, not product of deficient performance, ¶12:
There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance. She tried her best. She just looked in the wrong places. … Given this level of research, and especially the fact that Jeffrey’s own physician confirmed her research, we uphold the trial court’s finding that counsel’s decision to forego herpes testing was a reasonable professional judgment and not deficient. …
The lens through which the court scrutinizes counsel’s performance is extremely deferential. Guilt literally hinged on whether the defendant was indeed infected (the complainant was, and said she got it from him, so if he was herpes-free then he wasn’t guilty), and postconviction evidence showed to a virtual certainty that he did not have herpes. The court goes on to do the right thing, under the rubric of “interest-of-justice,” which hints to postconviction counsel that such a theory be added to any IAC claim where prejudice is clear but deficient performance might be contested.
Interest of Justice Review – Critical Evidence Not Heard by Jury
Where defendant’s commission of sexual assault hinged on whether he had transmitted herpes to the victim, and postconviction testing showed near-conclusively that he was herpes-free, new trial is granted in the interest of justice, ¶¶18-22.
State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992), distinguished, because trial counsel’s failure to produce favorable herpes test result wasn’t strategic, ¶19.
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