On Point

State v. Jeremy Joseph Hamilton, 2022AP1350-CR, District 2, 03/01/2023, (one-judge decision, ineligible for publication) case activity

Some readers of this decision might find themselves wondering why there’s no equivalent to baseball’s “tie goes to the runner” rule in criminal appeals. Others might find themselves researching the rule of lenity. However, it turns out there is no such rule in baseball, and the rule of lenity only assists defendants as a canon of statutory construction where a “grievous ambiguity” exists. See State v. Guarnero, 2015 WI 72, ¶26, 363 Wis. 2d 857, 867 N.W.2d 400; see also State v. Williams, 2002 WI 1, ¶19, 249 Wis. 2d 492, 637 N.W.2d 733 (rejecting a “close case” rule which would favor criminal defendants in breach of plea claims). As the court of appeals puts it: “…this is a very, very close case…[but] even close cases have to be decided one way or another…” (Opinion, ¶14). [continue reading…]

Kenosha County v. A.C.S., 2022AP1821-1825, 2/15/23, District 2 (one judge decision; ineligible for publication); case activity

Here’s a fact pattern one hopes doesn’t come up too often. The county sought the termination of “Anna’s” parental rights to five children. It then moved for summary judgment on the grounds that she’d been convicted of a serious felony related to the death of another child. A hearing was set, but Anna’s counsel informed the court she’d be in trial in a homicide case. Expecting an adjournment–which both trial counsel and the court of appeals note is “common practice” in such a situation–the attorney told Anna the hearing would be put off. Counsel’s homicide trial then unexpectedly ended early, though she still had work to do to wrap it up. The TPR court apparently heard through the grapevine that the homicide trial was over. Without any successful contact–or much apparent effort to contact–Anna or her lawyer, the court held the scheduled hearing ex parte and, at the county’s request, granted summary judgment. Later, over Anna and her counsel’s protestations, the court terminated her rights. [continue reading…]

Portage County DH & HS v. C.S., 2022AP1090, District 4, 02/23/2023, (one-judge decision, ineligible for publication) case activity

In what appears to be a first, the court of appeals addresses a grant of partial summary judgment against a parent specifically related to whether the county made a “reasonable effort” to provide services pursuant to a CHIPS order. See Wis. Stat. § 48.415(2)(a). One caveat being that the issue arises within the context of a postdisposition claim of ineffective assistance after trial counsel failed to file any response or affidavit opposing the county’s motion for summary judgment. Nevertheless, the court affirms the summary judgment order and holds that no genuine issue of material fact existed as to whether the county made a “reasonable effort” to provide services to C.S. that would have assisted him in meeting the conditions of return. (Opinion, ¶35).

[continue reading…]

On February 22, 2023, the court of appeals ordered publication of the following criminal law related decision:

State v. Ayodeji J. Aderemi, 2023 WI App 8 (delay in upload of information on efiling system didn’t deprive circuit court of jurisdiction in criminal case)

Winnebago County v. J.D.J., 2022AP1138, 2/22/23, District 2, (1-judge opinion, ineligible for publication); case activity

Such a maddening case. J.D.J., a prisoner diagnosed with schizoaffective disorder, was going to have a hard enough time winning a jury trial regarding his ch. 51 initial commitment. But the circuit court made his uphill battle impossible through a series of highly questionable pre-trial and trial rulings. Then the court of appeals, relying on nothing beyond its gut (i.e. not case law) affirmed. [continue reading…]

Wood County v. P.M.P., 2022AP1815, 2/23/23, District 4, (1-judge opinion, ineligible for publication); case activity

In this appeal, P.M.P.’s sole challenge was to the circuit court’s application of the “best interest of the child” factors in §48.426(3)(a)-(f). P.M.P. conceded that the circuit court adequately considered the “substantial relationship” factor, but its analysis of the other facts was too terse. The decision required reversal under s Minguey v. Brookens, 100 Wis. 2d 681, 303 N.W.2d 581 (1981) and State v. Margaret H., 2000 WI 42, ¶27, 234 Wis. 2d 606, 610 N.W.2d 475. The court of appeals disagreed and affirmed. [continue reading…]

State v. Graham L. Stowe, 2021AP431-CR, District 3, 02/17/23 (not recommended for publication); case activity (including briefs)

Graham Stowe was found NGI in 2005 and committed to the Department of Health and Family Services for 39 years and 6 months. Between 2007 and 2019, Stowe filed 10 petitions for conditional release. The same circuit court judge who committed Stowe in 2005 has presided over every subsequent proceeding. After five prior appeals, the court of appeals now agrees with Stowe that the circuit court was objectively biased at his 2019 conditional release hearing based on a totality of comments that demonstrate a “serious risk of actual bias.” As a result, the court reverses the circuit court and remands the case for a new conditional release hearing before a different judge. (Opinion, ¶2). [continue reading…]