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 S t a t e o f W i s c o n s i n 
Office of The State Public Defender
Wisconsin Forward Award Mastery Recipient
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Pending grants of review (for complete table, go here):
State v.
Brian H. Duchow (2005AP2175-CR),
unpublished below (admissibility of taped statements under WESCL, §
968.27-31), PFR gr 8/14/07
Wis. Supreme Court Opinions (2006-2007 WI __ Term):
Sentence Credit – Juvenile Commitment, Pending Adult Sentence
State v. Marcus W. Johnson, 2007 WI 107, on certification
Civil Commitments – Tuberculosis Treatment, § 252.07, Generally Appellate Procedure – Standard of Review – Civil Commitments – Tuberculosis Treatment Appellate Procedure – Waiver – Inherent Authority to Overlook Civil Commitments – Tuberculosis Treatment, § 252.07 – Confinement: Jail as Placement Option Civil Commitments – Tuberculosis Treatment, § 252.07 – Confinement: Least Restrictive Alternative Civil Commitments – Tuberculosis Treatment, § 252.07 – Confinement: Consideration of Costs Contempt – Remedial, § 785.04(1) – Basis for Tuberculosis-Treatment Confinement
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
Juries – Entitlement to / Composition of – Civil Forfeiture: Environmental Regulations
State v. William F. Schweda, 2007 WI 100, on certification
Appellate Procedure – Standard of Review -- Guilty Plea: Pre-Sentence Motion to Withdraw Plea Guilty Pleas -- Withdrawal of Plea -- Pre-Sentence – Generally Guilty Pleas -- Withdrawal of Plea -- Pre-Sentence -- “Fair and Just” Reason: Claim of Unrealized Benefit from Efforts to Cooperate with Law Enforcement
State v. Barry M. Jenkins, 2007 WI 96, reversing 2006 WI App 28
Evidence – Confessions – Corroboration Rule, Generally Evidence – Confessions – Corroboration Rule, Sufficiency, Morphine in Body of Deceased as “Significant Fact” on Delivery Charge / Appellate Procedure – Standard of Review: Sufficiency of Evidence – Corroboration of Confession Appellate Procedure – Interest of Justice Review – Real Controversy Fully Tried: Prosecutorial Opening Statement to Potential Witness Who Never Testified – Evidence of Death by Overdose of Recipient of Drug on Delivery Charge
State v. Edward Bannister, 2007 WI 86, reversing 2006 WI App 136 Sentencing – Factors: Guidelines, § 973.017(2)(a) – Reviewability – Mandated Consideration of Sentencing – Review, Generally, Preserved by Postconviction Motion Appellate Procedure – Binding Authority – Stare Decisis
State v. Vincent T. Grady, 2007 WI 81, affirming 2006 WI App 188
Search & Seizure – Wisconsin Electronic Surveillance Control Law, § 968.28 – Limited to “Enumerated Offenses” – Remedy for Invalid Wiretap Order
State v. Jeffrey Allen House, 2007 WI 78, affirming unpublished opinion
TPR – Parental Responsibility / Fitness, § 48.415(6) – Relevance of Father’s Conduct After Discovery He Is Child’s Father
State v. Bobby G., 2007 WI 77, reversing summary order
Review – Plain Error, § 901.03, Generally Appellate Procedure – Standard of Review – Hearsay Prosecutorial Misconduct – Closing Argument – “Disparaging” Defense Counsel’s Role Prosecutorial Misconduct – Closing Argument – Describing Offense as “Crime of Opportunity” Appellate Procedure – Harmless Error Analysis, Generally Appellate Procedure – Harmless Error – Comments on pre-Miranda Silence Evidence – Excited Utterance – Report of Robbery/Battery Counsel – Ineffective Assistance -- Prejudice
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
Guilty Pleas – Procedure – Read-In, Generally Guilty Pleas – Procedure – Read-In, Existence of Guilty Pleas – Procedure – Read-In, Defendant’s Understanding of Crimes: Sexual Assault of Child, § 948.02(2) – Elements, in Relation to Defense of Rape By the Child Guilty Pleas – Procedure – Factual Basis, Generally Guilty Pleas – Procedure – Factual Basis, Relation to Knowing and Intelligent Plea – Sufficiency of Plea Colloquy Guilty Pleas – Withdrawal of Plea – Post-sentencing – Procedure – Challenge to Factual Basis Guilty Pleas – Withdrawal of Plea – Post-sentencing: Grounds -- Coercion: Defendant's Pregnancy
State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
Guilty Pleas – Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Bangert Motion, Generally Appellate Procedure -- Standard of Review -- Guilty Plea: Motion to Withdraw Plea, Hampton-Type Evidentiary Hearing Mooting out Claim for Bangert Hearing on Same Ground Guilty Pleas -- Required Knowledge -- Elements (Understanding Nature of Charge) – Party-to-a-Crime Liability Guilty Pleas -- Required Knowledge – Understanding Nature of Charge – Colloquy, Generally Guilty Pleas -- Required Knowledge – Intersection with Factual Basis Guilty Pleas – Withdrawal of Plea -- Post-sentencing -- Procedure -- Pleading Requirements, Dual Bangert and Nelson/Bentley Motion Appellate Procedure -- Standard of Review -- Guilty Plea: Motion to Withdraw Plea, Nelson/Bentley-type Motion
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
Search & Seizure – Reasonable Suspicion for Traffic Stop – Deviations within Lane – No Bright-Line Rule, Stop Permissible under Totality of Particular Circumstances Search & Seizure – Reasonable Suspicion for Traffic Stop – Deviations within Lane, et al – Stop Permissible, Totality of Particular Circumstances
State v. Robert E. Post, 2007 WI 60, reversing unpublished decision
Evidence – Sufficiency of Objection, Admissibility of Evidence – Specificity of Ground Required Evidence – Prior Inconsistent Statement -- Admissibility Discovery – Prosecutorial Obligation: No Requirement to Reveal Prior (Unrecorded, Oral) Statement Confrontation – Testimonial Statement, Opportunity for Cross-Examination – Witness Who Testified and Then Was Dismissed
State v. Samuel Nelis, 2007 WI 58, affirming unpublished decision
Statutes – Construction -- Administrative Agency’s Interpretation of Governing Statute Extended Supervision – Jurisdiction to Revoke – Consecutive Terms, Pre-TIS Parole & ES: May Revoke Simultaneously
State ex rel.. Kevin Thomas v. Schwarz, 2007 WI 57, affirming unpublished decision
Open Records – Copyright Material – Standing to Challenge Disclosure Open Records – Copyright Material – “Record” under Ch. 19 Open Records – Timing of Release – Discipline Already Imposed Open Records – Balancing of Interests Relative to Disclosure
Robert Zellner v. Cedarburg School District, 2007 WI 53, on certification
Appellate Procedure – Argument: Concession of Error by State Standard of Review – Search & Seizure – Consent Search & Seizure – Consent – Acquiescence, Generally Search & Seizure – Consent – Acquiescence – Response to Stated Intent to Search Search & Seizure – Frisk – Auto Stop – Generally Search & Seizure – Frisk – Auto Stop – Reasonable Suspicion: Single Factor – “Furtive” Movement Search & Seizure – Duration of Stop, Routine Traffic Violation Search & Seizure – Frisk – Behavior During Pat-Down as Part of Reasonable Suspicion Calculus
State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15
Standard of Review – TPR: Partial Summary Judgment TPR – Partial Summary Judgment (as to Fact-Finding Hearing) – Basis and Proof – Prior TPR, Grounds for TPR – Prior TPR as Grounds, Based on Default Judgment
Oneida Co. DSS v. Nicole W., 2007 WI 30, affirming unpublished decision
Standard of Review – Confrontation Confrontation – “Testimonial” Statement – Generally: “Broad” Definition Applies – Solicitation by Police not Absolutely Necessary Confrontation – “Testimonial” Statement – Letter Addressed to / Voicemails Recorded by Police Confrontation – “Non-Testimonial” Statement – Statements to Acquaintances Confrontation – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Adoption of Doctrine Confrontation – Forfeiture-by-Wrongdoing Challenge to “Testimonial” Statement: Test
State v. Mark D. Jensen, 2007 WI 26, on bypass
Search & Seizure – Expectation of Privacy – Proof of, Generally (and: “Standing” Contrasted) Search & Seizure – Expectation of Privacy – In Relation to Area Searched, Generally Search & Seizure – Expectation of Privacy – Automobile: Non-Owner Search & Seizure – Expectation of Privacy – Automobile: Closed Container
State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
Detainers – Interstate Agreement on Detainers – Inapplicable to SVP Commitment Following Return under IAD to Serve Criminal Sentence Detainers – Interstate Agreement on Detainers – Inapplicable to Parole
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
Evidence – Extraneous Conduct, § 904.04(2) – “Sullivan” Analysis & “Reverse” Misconduct / Defenses -- § 940.09(2), Homicide by Intoxicated Use: Death Would Have Occurred Anyway – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause / Crimes: § 940.09(1), Homicide by Intoxicated Use – Admissibility of Evidence of Deceased’s Prior Conduct as Relevant to Intervening Cause Appellate Procedure – Binding Authority – Consideration of Foreign Authority When Wisconsin Law Is Unclear
State v. Steven P. Muckerheide, 2007 WI 5, affirming unpublished opinion
Appellate Procedure – Constitutional Nature of Right to Appeal Appellate Procedure – No-Merit Report – Generally Appellate Procedure – No-Merit Report – Defendant’s Right to Access PSI / Presentence Report -- Defendant’s Right of Access, No-Merit Appeal Appellate Procedure – No-Merit Report – Attorney General’s Right to Access PSI / Presentence Report – Attorney General’s Right of Access, No-Merit Appeal Statutes – Construction – Retroactive Application
State v. Michael J. Parent, 2006 WI 132, on certification
Appellate Procedure – Standard of Review – Reconfinement, Bifurcated Sentence / Extended Supervision – Reconfinement: Review Extended Supervision – Reconfinement Sentence – Weight Accorded Reviewing Authority’s Recommendation Extended Supervision – Reconfinement Sentence – Exercise of Discretion – Generally: Need for “Reasoned Explanations” Extended Supervision – Reconfinement Sentence – Exercise of Discretion – Generally: Factors
State v. John C. Brown, 2006 WI 131, affirming 2006 WI App 44
TPR – Default as Sanction for Failure to Appear TPR – Right to Appearance by Counsel, Notwithstanding Parent’s Default in Failing to Personally Appear at Fact-Finding Phase TPR – Right to Counsel – Waiver TPR – Harmless Error: Denial of Right to Counsel / Appellate Procedure – Harmless Error: Denial of Right to Counsel -- TPR
State v. Shirley E., 2006 WI 129, affirming 2006 WI App 55
State v. Geoffrey D. Kasmarek, 2006 WI 123, dismissing review as improvidently granted
Search & Seizure – Stop – Basis – Automobile: Display of Temporary Plate
State v. Raymond Lord, Jr., 2006 WI 122, reversing unpublished opinion
Published Wisconsin Court of Appeals Opinions (2007 WI App __):
Appellate Procedure – John Doe Proceeding -- Review of, by Supervisory Writ Pretrial Proceedings – John Doe Proceeding – Right to Subpoena Witnesses Prosecutorial Misconduct – Ex Parte Contact with Judge / Judges – Ex Parte Contact with Prosecutor
State ex rel. Adrian T. Hipp v. Murray, 2007 WI App 202, (AG’s) PFR filed 8/16/07
Statutes – Construction – Ambiguity Analysis – Reliance on prior Caselaw Construction of Statute Crimes – § 940.225(7), Sexual Intercourse with Corpse – Liability Requires that Defendant Cause Death
State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2007 WI App 198, (AG’s) PFR filed 8/24/07
Constitutional Issues – Public Trial
State v. David L. Vanness, 2007 WI App 195
Appellate Procedure – Standard of Review -- Guilty Plea – Remedy for Defective Plea, Multiple Counts Guilty Pleas -- Plea Agreements -- Partial Withdrawal Doesn't Necessarily Work Repudiation of Entire Bargain
State v. Mark J. Roou, 2007 WI App 193
Appellate Procedure – Standard of Review – Sentence Modification – “New Factor,” Generally Sentence Modification – New Factor Test, Generally Re-Sentencing – Generally Re-Sentencing – Modification of Sentence, Distinguished Sentence -- Modification -- New Factor: Parole Policy
State v. Lorenzo Wood, 2007 WI App 190, PFR filed 8/16/07
Search & Seizure – Arrest – Probable Cause – Specific Examples: Obstructing Search & Seizure – Arrest – Probable Cause – Specific Examples: Seatbelt Violation
State v. Pedro L. Nieves, 2007 WI App 189, PFR filed 7/6/07
Appellate Procedure – Standard of Review – Sufficiency of Evidence Conspiracy -- § 939.31, Elements – Generally / Conspiracy to Manufacture Controlled Substance -- § 961.41(1x), Elements -- Generally Conspiracy to Distribute Controlled Substance -- Undercover Agent as Party to Agreement, Generally Conspiracy to Manufacture Controlled Substance – Sufficiency of Evidence – Knowledge of Intended Use Conspiracy -- § 939.31 – Sufficiency of Evidence – Agreement / Conspiracy to Manufacture Controlled Substance – Sufficiency of Evidence – Agreement
State v. Henry E. Routon, 2007 WI App 178, PFR filed 7/23/07
Crimes: Controlled Substance – Sufficiency of Evidence, Possession Evidence -- § 904.04, Applicability of “Sullivan” Analysis – Evidence of Drug House not Extraneous Misconduct but Proof of Element Jury – Verdicts – Polling and Unanimity
State v. Charles E. Dukes, 2007 WI App 175
Search & Seizure – Warrantless Entry of Residence – Generally Search & Seizure – Arrest – Probable Cause – Drug Activity Search & Seizure – Warrantless Entry of Residence – Exigency -- Hot Pursuit – Misdemeanor (Obstructing) Search & Seizure – Warrantless Entry of Residence – Exigency -- Destruction of Evidence (Drugs) Appellate Procedure – Dicta, Generally
State v. Dwight M. Sanders, 2007 WI App 174, PFR filed 7/6/07
Statutes – Construction: In Pari Materia; Specific Controls General Extended Supervision – Conditions, Generally Extended Supervision – Conditions: “Contribution Payment” – Court Need not Determine Ability to Pay / Sentencing – Costs, etc., § 973.06, Ability-to-Pay Determination, Distinguished from Condition of Extended Supervision
State v. Richard G. Galvan, 2007 WI App 173, PFR filed 7/20/07
Search & Seizure – Wisconsin Electronic Surveillance Control Law (WESCL), §§ 968.27-.37 – Jailhouse Call Intercept – Possibility of Attorney-Client Conversation Doesn’t Overcome Notice to Inmate of Potential for Intercept
State v. Troy Curtis Christensen, 2007 WI App 170, PFR filed 7/5/07
Reconfinement – Lack of Authority to Consider CIP or ERP Eligibility / Sentencing – CIP/ERP – No Authority to Consider Eligibility on Reconfinement following ES Revocation
State v. Antonio M. Hall, 2007 WI App 168
Statutes – Construction – Lack of Ambiguity for One Purpose Doesn’t Preclude Ambiguity for Another Statutes – Construction – Rule of Lenity: Unresolved Ambiguity Required Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Prime Contractor Also Acting as Subcontractor Subject to Statute Appellate Procedure – Standard of Review: Bindover Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Elements, Generally Crimes: Theft by Contractor, §§ 779.02(5), 943.20(1)(b) – Sufficiency of Bindover Proof / Preliminary Hearing – Sufficiency of Bindover Proof, Theft by Contractor, §§ 779.02(5), 943.20(1)(b)
State v. Angela A. Keyes / Matthew E. Keyes, 2007 WI App 163, PFR filed 7/12/07
Search & Seizure – Consent – Lawful Seizure Alone Isn’t Coercive
State v. John J. Hartwig, 2007 WI App 160, PFR filed 5/22/07
Crimes: Traffic, § 346.67(1)(a), Hit-and-Run – Elements – Operator ID
State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
Jurisdiction – Offenses in “Indian Country,” 18 U.S.C. § 1162 – Felon in Possession of Firearm, § 941.29
State v. Brian N. Jacobs, 2007 WI App 155
Search & Seizure – Emergency Exception to Warrant Requirement -- Officer's Subjective Intent Search & Seizure – Emergency Exception to Warrant Requirement – Kidnapping: Heightened Need to Search for Children Search & Seizure – Emergency Exception to Warrant Requirement – Kidnapping: Search for Evidence Leading to Victim’s Location
State v. David M. Larsen, 2007 WI App 147, PFR filed 5/31/07
Search & Seizure – Applicability of Exclusionary Rule – Private-Party Search: UPS Search & Seizure – Warrants – “Franks” Hearing Search & Seizure – Warrants – Good-Faith Search & Seizure – Warrants – Probable Cause – “Nexus” Between Objects Sought and Place to be Searched
State v. Christopher D. Sloan, 2007 WI App 146
Appellate Procedure – Notice of Appeal – Contents – Inconsequential Errors Evidence -- § 904.04(2), “Reverse Misconduct” – Felony Conviction of 3rd-Party, as Relevant to Felon-in-Possession Evidence – Against-Interest Statement Exculpating Defendant, Must Be Against Declarant’s Interest Prosecutorial Misconduct – Closing Argument – Statement of Personal Belief in Guilt
State v. Patrick Jackson, 2007 WI App 145, PFR filed 6/6/07
Sentence -- Review -- Sentence After (Extended Supervision) Revocation -- Reconfinement Sentence Imposed by Different Judge
State v. Clayborn L. Walker, 2007 WI App 142, PFR filed 6/1/07
Counsel – Ineffective Assistance – Failure to Investigate – Revocation of Extended Supervision: Alternatives to Revocation / Extended Supervision – Revocation – Adequacy of Representation Extended Supervision – Revocation – Waiver -- Voluntariness
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
Crimes – Securities Fraud, § 551.41(2) – Promissory Note Statutes – Construction – Rule of Lenity
State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
TPR – Competency of Court – Statutory Time Limits, Generally / Jurisdiction –Competency of TPR Court – Statutory Time Limits, Generally TPR – Competency of Court – Statutory Time Limits – Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order / Jurisdiction –Competency of TPR Court – Statutory Time Limits – Failure to Comply with § 48.427(1) 10-day Limit for Entering Dispositional Order TPR – Sufficiency of Warnings, Prior CHIPS Proceeding Appellate Procedure – Briefs: Failure of Reply Brief to Respond to Argument
Dane Co. DHS v. Dyanne M., 2007 WI App 129, PFR filed 4/23
Forfeiture – Dismissal with Prejudice, Failure to Hold Timely Hearing on Petition, § 961.555(2)(b) / Competency of Court – Time Limit Violation, § 961.555(2)(b)
State v. Lamont D. Powell, 2007 WI App 127
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