State v. Brian M. Joski, 2010AP2223-CR, District 3, 5/3/11 court of appeals decision (1-judge, not for publication); for Joski: Thomas J. Coaty; case activity A prior conviction used to enhance a new sentence may be collaterally attacked on the basis of violation of right to counsel, in other words, that the defendant didn’t validly waive counsel within… Read more
E. Enhancers
State v. George McGee, 2010AP3040-CR, District 3, 4/26/11 court of appeals decision (1-judge, not for publication); for McGee: Steven G. Richards; case activity McGee’s collateral attack on a prior OWI conviction used to enhance his present sentence is necessarily limited to denial of the constitutional right to counsel, ¶5. Although McGee represented himself in the challenged prior… Read more
State v. Gerard W. Carter, 2010 WI 132, reversing 2009 WI App 156; for Carter: Craig M. Kuhary; State BiC; Carter Resp.; Reply Prior DL suspension under Illinois’ “zero tolerance” law (which suspends or revokes operating privileges of drivers under legal drinking age with any alcohol concentration) satisfies § 343.307(1)(d) and therefore supports OWI enhancement, § 346.65(2). Court of appeals holding… Read more
State v. David J. Bucknell, 2010AP833-CR, District 3, 9/30/10 court of appeals decision (1-judge, not for publication); for Bucknell: Rebecca M. Coffee; BiC; Resp.; Reply A prior conviction, used to enhance a pending charge, may be collaterally attacked on the basis of denial of the 6th amendment right to counsel. Because “it is clear from… Read more
State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10 court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp. Reasonable Suspicion – Traffic Stop Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable… Read more
U.S. v. O’Brien, USSC No. 08-1569, 5/24/10 § 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of… Read more
decision below: 2009 WI App 156; for Carter: Craig M. Kuhary Issues: Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)? What methodology are trial courts to employ in determining whether to count out-of-state… Read more
USSC decision Armed Career Criminal Act State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1). There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice… Read more
