Juneau County must honor nonprosecution agreement of former prosecutor, appeals court rules
By Gretchen Schuldt
An unwritten agreement made by a district attorney to forego criminal charges in a child abuse case in exchange for a couple's agreement to terminate parental rights is enforceable, the state Court of Appeals ruled Thursday.
The ruling by the three-judge District IV appellate panel affirms a decision by Juneau County Circuit Judge Stacy A. Smith dismissing with prejudice criminal charges brought against the couple after the district attorney's office changed hands.
The appellate panel, however, dodged the question of whether Smith correctly decided the case based on prosecutorial misconduct by former controversial Juneau County District Attorney Michael Solovey. Instead the panel, in a decision written by Appellate Judge Rachel Graham, held that the state, among other things, did not meet its burden to show the agreement was against public policy.
Graham was joined in her decision by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The couple, Debra and Steven Rippentrop, were each charged with multiple felonies related to child abuse they allegedly committed against their son around 2014 and 2015.
Law enforcement first got wind of potential abuse in January 2015, when the son, then 14, told law enforcement that he ran away because the Rippentrops were restraining him "24 hours a day seven days a week," Graham wrote.
The adult Rippentrops admitted it, but said they did so "as a desperate measure to prevent him from harming himself or others due to violent and destructive behavior," Graham said.
The issue was referred to Solovey for review, and the county began a child in need of protection or services (CHIPS) case. Solovey expressed some concern about A.B.'s credibility and whether a jury would believe his testimony.
The son, identified in the decision as "A.B.," ran away again later that year. He again reported abuse, and the county human services department placed him with other relatives, who eventually adopted him.
Solovey, who was aware of the CHIPS case, got together with Debra and Steven Rippentrop and their lawyer, Kerry Sullivan-Flock, and made an offer. Solovey would forego issuing criminal charges if the Rippentrops gave up parental rights and ended all contact with A.B., Graham said. The couple accepted.
Solovey said he was concerned that the CHIPS case could result in A.B. going back to their home, which Solovey believed was not in A.B.'s best interest.
Solovey notified law enforcement and attorneys in the corporation counsel's office of the agreement and later told the guardian ad litem representing A.B.'s interests.
He testified later that his decision was “ '[not] received well,' and that the office of corporation counsel was not happy about his decision to not charge the Rippentrops with criminal offenses," Graham wrote.
The Rippentrops began meeting their obligations under the agreement. They stopped contesting allegations in the CHIPS case and began pursuing voluntary termination of their parental rights.
Unhappy officials in the corporation counsel's office began a John Doe proceeding in early 2016 that the Rippentrops did not learn about for about three years. Solovey attended, but was not allowed to cross-examine witnesses or to testify.
After a two-day hearing, the John Doe judge appointed a special prosecutor to decide whether the Rippentrops should be charged. Solovey was allowed to make a statement after the judge ruled, but he did not tell the judge about the non-prosecution agreement. The corporation counsel's office also did not tell the judge of the agreement.
The Rippentrops signed TPR petitions in May, 2016, and it was approved. Solovey determined that the Rippentrops met all the agreed-upon conditions.
Solovey lost his reelection bid in 2016 and was replaced by Kevin Hamm.
In February, 2019, the state charged the Rippentrops with multiple felonies, including second-degree recklessly endangering safety, child abuse, false imprisonment, and causing mental harm to a child.
The Rippentrops, with new lawyers, demanded the state keep its agreement, but the DA's office fought back. It argued that the pact was "void as against public policy because it required the Rippentrops to terminate their parental rights."
While recognizing a contract with the state should be enforced, Smith found that "it was against public policy 'to make any arrangement that would terminate a [parent’s] rights by either a threat or some kind of contract such as this,' ” Graham wrote. "The court likened the agreement to the sale of a child, concluding that, much like it violates public policy to offer an expectant mother money for her unborn child, the nonprosecution agreement violates public policy because it offered the Rippentrops something of value in exchange for terminating their parental rights."
Smith also said that the Rippentrops did not have “clean hands” because they failed to disclose the agreement to the TPR court. Debra Rippentrop said later she did not mention it because she thought everyone knew about it.
A year later, the Rippentrops again moved to have the charges dismissed, this time arguing that Solovey committed prosecutorial misconduct by proposing the agreement. Smith granted the motion, finding that "Solovey's actions 'clearly' constituted 'misconduct' and that the only recourse for maintaining the integrity of the judicial system is dismissal of the criminal charges with prejudice."
The appeals panel upheld Smith's decision, but on a different basis — that the agreement was binding and enforceable.
"Wisconsin cases suggest that any prosecutorial promise — whether embodied in a nonprosecution agreement or an unexecuted plea agreement — may become binding if a party detrimentally relies upon it," Graham wrote. The State appears to acknowledge that the Rippentrops did just that, she said.
The appeals court also found that the state did not adequately show that the nonprosecution agreement was contrary to public policy.
The state appeared to argue that voluntarily agreeing to terminate parental rights was not truly voluntary if it was wrapped up in other considerations that include a safe harbor from criminal prosecution.
"Much like it does not violate public policy for a criminal defendant to enter into a plea agreement that induces the defendant to waive valuable rights in exchange for receiving the agreement’s benefits, the State does not persuade us that the provision in the nonprosecution agreement that required the Rippentrops to voluntarily terminate their parental rights violated any public policy clearly expressed by" law, Graham said.
They state also argued that neither Solovey nor the Rippentrops disclosed the agreement to court officials, suggesting it "amounted to a secret backroom deal that should not be enforced by any court."
Solovey, though, told law enforcement, the corporation counsel's office, and the guardian ad litem about the agreement, Graham said.
"Although the aforementioned individuals were not parties to the deal the Rippentrops struck with Solovey — indeed, it appears that they strenuously disapproved of its terms — they made no objection to receiving its benefits when the Rippentrops followed through with their promise to consent to the termination of their parental rights," Graham wrote.
"Although we need not weigh the policies in favor of enforcement, we note that the public policy in favor of enforcing the nonprosecution agreement is compelling," Graham said. "Generally speaking, public policy favors the enforcement of contracts. And here, substantive due process and principles of fundamental fairness render the enforcement of this prosecutorial promise even more compelling."
court of appeals rejects probation sentence for fifth-offense drunk driving; prison time required
By Gretchen Schuldt
Convicted fifth- or sixth-offense drunk drivers must serve at least a year behind bars and cannot be placed on probation, the state Court of Appeals ruled Wednesday.
“The law does not authorize the circuit court to impose but stay the sentence and instead place the defendant on probation,” Appellate Judge Shelley A. Grogan wrote for the District II panel. The decision reversed a ruling by Waukesha County Circuit Judge and Supreme Court candidate Jennifer Dorow.
Grogan has endorsed Dorow’s opponent in the race, Daniel Kelly, and has been publicly critical of Dorow.
In the OWI case, Grogan was joined in her opinion by Appellate Judges Lisa S. Neubauer and Maria S. Lazar.
The court returned the case to circuit court so Lynne M. Shirikian can be given more incarceration time.
Shirikian was arrested for fifth-offense drunk driving, a felony, in May 2020. A blood test showed a blood alcohol level of .299, well above legal limits, Grogan wrote.
She was released on bail with a condition of absolute sobriety, which she violated. The state charged her with felony bail jumping in a separate case.
Shirikian eventually pleaded guilty to the OWI fifth and to refusal to consent to a blood test.
At sentencing, the prosecutor, Mary Caitlin Brejcha, argued the felony bail jumping made for a more serious case.
“It pointed out that while out on bail on the initial charge, Shirikian was caught at a store again trying to conceal alcohol … and she had also been drinking, as evidenced by the .096 preliminary breath test performed at that time,” Grogan wrote.
Shirikian, in response, said that she is an alcoholic who relapsed because of COVID-19.
Defense counsel, Donna Jean Kuchler, also told the circuit court that since the bail-jumping charge, Shirikian had received treatment and had been sober for seven months,” Grogan wrote. Although refusal to take a blood test “is normally an aggravating factor,” the defense contended, “here, she was so drunk that ‘[s]he didn’t know what was going on.’ ”
Dorow, in her sentencing remarks, said the state law mandated a minimum of 18 months in prison unless she could find that a lesser sentence is in the best interest of the community and the public would not be harmed. She also was required to make a record of those findings.
“That’s a tough one for me,” Dorow said during the sentencing hearing. “How do I make a finding that confinement of less than one year and six months is in the best interest of the community, and will not harm [the] public, when you’ve had four priors? When you’ve been given the opportunity for probation in the past? Can I do that under the circumstances of this case?”
Eventually, though, she did. Dorow sentenced Shirikian to three years in prison followed by two years of extended supervision, but stayed the sentence and put Shirikian on probation for three years with nine months incarceration with work-release privileges.
Afterward, the prosecutor, relying on an analysis from the state Department of Justice, told Dorow the drunk driving law relied on another statute that required Shirikian to serve at least a year of incarceration, even with the exception to the 18-month presumptive minimum.
The state filed a motion for resentencing, which Dorow denied, saying that resentencing would violate her double jeopardy protections. The state appealed.
The state’s reading of the OWI law is correct, Grogan wrote for the panel. The language of the statute is unambiguous, and the state’s progressively harsh OWI penalties shows that Dorow’s interpretation is unreasonable.
“It would likewise be unreasonable to interpret this statute, as the circuit court suggested, to mean that a court could sentence a fifth- or sixth-OWI defendant to as little as one day in jail, which is less than the required sentence for a second OWI offense,” Grogan wrote.
The panel ordered resentencing for Shjirikian, rejecting Dorow’s double jeopardy contention.
“Because Shirikian’s sentence was not lawful, she has no legitimate expectation of finality in it, and resentencing her does not violate double jeopardy,” Grogan said.
PROSECUTORS SAY VICTIM SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL UNDER 2020 AMENDMENT TO STATE CONSTITUTION
By Gretchen Schuldt
The Milwaukee County District Attorney’s Office is appealing a contempt of court finding against a prosecutor who defied a judge's ruling barring a victim from watching the trial of her alleged assailant until after the victim testified.
The prosecutor, Assistant District Attorney Thomas L. Potter, sent an email to the primary victim in the case – there were two victims – acknowledging that Circuit Judge Kori Ashley issued the sequestration order, then added, “I am nevertheless inviting you to attend the opening statement because I believe Judge Ashley’s order to be inconsistent with Wisconsin law, and wish to have it reviewed by an appellate court.”
Potter argued before Ashley that state law and “Marsy’s Law,” a victims' rights amendment to the Wisconsin Constitution adopted by voters in April 2020, gave victims the right not to be physically excluded from the courtroom, according to a brief filed Wednesday by District Attorney John Chisholm and Assistant District Attorney Julie Knyszek.
Specifically, Marsy’s Law gives victims the right to “attend all proceedings involving the case” if they ask to do so. It also states that rights given to victims will not infringe on defendants’ federal constitutional rights, such as the right to due process.
Defendant Arielle A. Simmons, represented by attorney Colleen Cullen, argued that sequestration was justified because the victims were criminal defense lawyers and would be more likely to shape their testimony to fit the state’s theory of the case, according to the brief. Simmons was charged with misdemeanor assault and misdemeanor disorderly conduct in the case.
Ashley, according to the brief, ruled that the “defense theory of the case” made sequestering the victims until after they testified necessary.
After Potter sent the email, he assured Ashley that he was simply trying to preserve the issue for appeal and did not mean to show disrespect. She found him in contempt, as he wanted her to do, and fined him $500. She stayed the fine pending the appeal, according to online court records.
Ashley, the brief said, did not rule on the exclusion issue until right before the start of the trial.
“Only through the finding of contempt was an opportunity for review of victim exclusion made available,” Chisholm and Knyszek wrote. “The release of incriminating information at trial cannot be undone; likewise the improper exclusion of a victim causes irreparable harm, regardless of the outcome of that trial.”
The reason Ashley gave for sequestering the victims was not specific enough, the brief said.
“The only basis for these assertions was that both victims were criminal defense attorneys who have tried cases and were thus aware of the court system,” Chisholm and Knyszek wrote. “Their knowledge and experience in trying criminal cases somehow meant they could not be trusted to testify truthfully. As Potter would argue, the fact that the victims were officers of the court was hardly reason to deny their right to attend the trial; such an ‘employment status’ argument presumed bad faith and made no sense.”
State law also gives victims certain rights to attend proceedings during the testimony of others, they said. Physical sequestration, while it can be useful, “has been strictly limited for excluding victims.”
“Neither Simmons nor the circuit court cited to a single case, from any court, which held that a witness sitting through a trial, and then testifying, violated a defendant’s federal constitutional right to due process,” they said.
No opposing brief has yet been filed.
Simmons ultimately took her case to trial. A jury acquitted her of misdemeanor battery and convicted her of disorderly conduct, also a misdemeanor. Ashley fined her $400 and made her record eligible for expungement.
By Gretchen Schuldt
The Wisconsin Institute for Law and Liberty is appealing a circuit court decision preserving a scholarship program designed to increase student diversity in colleges.
WILL argues that Jefferson County Circuit Judge William F. Hue got it wrong when he said the Minority Undergraduate Retention Program, operated by the state’s Higher Education Aids Board, survived “strict scrutiny,” the most-stringent level of judicial review. The program provides grants of $250 to $2,500 per year to students who are Black, American Indian, or Hispanic, or who are former citizens of Laos, Vietnam, or Cambodia. Eligible students also must attend private, nonprofit colleges or technical colleges.
Hue found the state had compelling interests in post-enrollment racial diversity and providing financial aid to students who might not otherwise have access to it. Those interests, WILL said in a brief filed Tuesday, were “not previously recognized by other courts.”
Hue also found that no race-neutral alternative would serve the state’s interests and that the program was sufficiently temporary and was narrowly tailored because it did not take money from other aid programs, WILL said.
The state has not yet filed a reply brief.
WILL, representing five plaintiffs opposed to the program, contended in its District II Court of Appeals brief that Hue did not properly apply strict scrutiny standards. Instead, he relied on a U.S. Supreme Court case, Grutter v. Bollinger, “with a starkly different policy and some law review articles rather than the entire body of admissions case law,” WILL argued.
In Bollinger, the Supreme Court ruled that the Equal Protection Clause did not prevent the University of Michigan Law School from considering race in admissions decisions to obtain the benefits that come from a diverse student body. The court found that the school’s individualized review of student applications meant that acceptance or rejection would not be automatically based on race.
It is undisputed, WILL said in its brief, “that the Grant program excludes large swaths of students from consideration solely based on their race. The barred groups include not only Caucasian students, but students from India, China, Afghanistan, and the Middle East. A student who is not a member of one of the preferred racial groups selected by the Legislature in the 1980s is ineligible, full stop, no matter the extent of the student’s need."
WILL wrote that “In fact, appellants have located no policy in higher education or otherwise that provides a complete racial bar and still survives strict scrutiny."
court of appeals reads law narrowly, denying confidential name change for transgender youth
By Gretchen Schuldt
A transgender young man who sought a confidential name change to reflect his gender is not entitled to it because he could not show that publication of his name change petition would more likely than not put him in physical danger, the state Court of Appeals ruled.
While another judge might rule differently, Brown County Circuit Judge Tammy Jo Hock did not abuse her discretion in refusing to grant the request, Appellate Judge Gregory B. Gill Jr. wrote for the three-judge District III Court of Appeals panel. Gill was joined in the decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark.
Robert, as he is identified in the decision, began questioning his gender identity when he was young and began wearing men’s clothing and going by his male name in elementary school.
“Students ‘verbally abused’ Robert for wearing men’s clothes and for using a ‘male’ name, and they reportedly called Robert ‘a fat ugly lesbian,’ ” Gill wrote. “According to Robert, these same students also ‘kicked and punched’ him.”
A teacher repeatedly said that Robert ‘had bad parents’ because they allowed him to wear male clothing and use a male name, Gill wrote. The same teacher called Robert ‘an ugly little girl’ ” and, when he cried, “the teacher threatened to audiovisually record Robert so that others could see that he was ‘acting like a girl and not like a boy,’ ” Gill said.
In middle school, students called Robert derogatory names, threatened him, and beat him up. A note left in his locker told him to kill himself.
The resulting anxiety led Robert to be hospitalized in a psychiatric unit, Gill said.
Robert transferred schools and things got better, though one student bullied him and one teacher refused to use his preferred pronouns.
Outside of school, though, the bullying continued, Gill said. Kids in the neighborhood called him names, threatened to shoot him with a BB gun, and beat him up.
He had sex change surgery and now physically appears as a 17-year-old boy.
Hock rejected Robert’s name change petition without holding a hearing on the matter. She found that the “test is not whether a person is uncomfortable with public disclosure of a name change but rather if the publication required under Wisconsin statutes would endanger the individual.”
Robert already was using his male name with family members, at school, and in personal dealings, she said. Anyone who has contact with him knows that he is transitioning and uses a male name, she said.
Robert appealed the ruling, arguing, among other things, that the law required him only to show that he could be endangered by the petition’s publication and that the word “endanger” includes physical, mental, or emotional harm.
The state, in opposing Robert, argued that he must show that it is more likely than not that he could be physically endangered if the name change is published. Showing that he faced the mere possibility of endangerment is insufficient, the state argued. It also said “endanger” referred only to physical harm.
“While we agree that we cannot ignore the legislature’s use of the word ‘could,’ Robert’s interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ’possible,’ ” Gill wrote.
Instead, he said, “the burden is on a petitioner to demonstrate the likelihood of a future event, and he or she must demonstrate that it is more likely than not that future endangerment is possible.”
The appeals panel also agreed with the state that “endanger” does not include mental harm. The intent of the confidentiality statute, as shown through legislative correspondence to the bill’s drafters, was to “allow a victim of domestic abuse to petition the court for an exemption” to publishing a name change petition, Gill wrote.
While not conclusive, the note “confirms that ‘endanger’ deals with physical harm, not emotional or mental harm,” he said.
By Gretchen Schuldt
A woman had a reasonable belief that she was not free to leave a parking lot after police officers parked in a way that made it difficult for her to drive away, shined a “take down” spotlight into her car, and knocked on her car window and announced themselves as law enforcement, the State Court of Appeals ruled last week.
District IV Appellate Judge Brian W. Blanchard, in upholding a decision by Jefferson County Circuit Judge William V. Gruber to suppress evidence, found that the state did not “show that the court clearly erred in finding that a reasonable person in (Annika) Christensen’s position would have had, in the words of the court, an ‘actual or perceived inability to’ drive away from the police.”
Blanchard remanded the case back to Circuit Court, where Gruber had already dismissed the four misdemeanor counts filed against Christensen.
Christensen, then 21, was arrested in November 2019 as she and a passenger sat in her car in a parking lot about 6:49 p.m. The lot, owned by the Department of Natural Resources, had a single entrance/exit, and trees blocked Christensen from driving forward or to the right, according to the decision.
Town of Lake Mills Police Sgt. Ryan Walters, who was with Officer Vincent Pagliaro, drove a police truck into the lot and parked behind Christensen’s car and another car parked next to it, Blanchard wrote. The officers activated their take-down lights.
Pagliaro testified in Circuit Court that Christensen’s car drew his attention because “it was parked while there was snow falling, it was running, its windows were fogged, and it was sitting in the dark,” according to a defense brief filed by attorneys Teuta Jonuzi and Tracey A. Wood. They added: “Pagliaro acknowledged that it would not be uncommon for fogging of windows to occur when it is cold outside and the heat is turned on in the vehicle.”
Walters, though, said “he did not note the window fogging until he approached Christensen’s vehicle, and it was not part of his decision-making process in electing to make contact with Christensen’s vehicle,” Jonuzi and Wood wrote. “Similarly, he did not note any signs of drug activity with the vehicle before he made contact with Christensen. Per Walters, had Christensen attempted to drive her vehicle away, she would not have been free to do so.”
Walters testified in Circuit Court, they wrote, that neighbors had complained about drug activity in the lot and that he had previously arrested people for drug offenses there.
A subsequent open records request to the Lake Mills Police Department revealed, however, that there had been only one previous drug arrest in the parking lot.
Walters later testified that he had arrested three juveniles in the lot five years earlier and that those were the only arrests he had made. There had been no drug-related contacts in the lot since then, Wood and Jonuzi wrote.
The officers differed in how far they said they parked behind Christensen’s car. Pagliaro said about 30 feet, while Walters said about 10 feet, Blanchard wrote in his decision.
Both said Christensen had room to leave, “although Sgt. Walters testified that ‘[i]t would have been tight,’ ” Blanchard wrote.
Walters said he did not know whether Christensen would have been able to leave in “one maneuver” or whether she would have to “back up and pull forward to go around the back side of my vehicle.”
Gruber found Walters’ testimony more convincing and accepted it. Blanchard said video of the truck’s position was not included in the appellate record and so he accepted the Circuit Court’s finding.
After Walters activated the spotlight, Blanchard wrote, Pagliaro got out of the police truck and approached Christensen’s car on the passenger side. He announced he was a police officer and knocked on the front passenger-side window. The passenger rolled down the window and the smell of burned marijuana wafted out of the car.
Christensen was charged with possession of marijuana, possession of paraphernalia, and two counts of possession of narcotics, all misdemeanors.
The state, on appeal, argued that the officers’ initial contact with Christensen was a “consensual encounter” and that Fourth Amendment protections did not kick in.
Gruber, Jefferson County District Attorney Monica Hall wrote in prosecution briefs, “did not find that Ms. Christensen could not have driven away, just that it would have been difficult for her to do so.” That, she said, is similar to cases in which the state Supreme Court ruled that stopped individuals were not “seized” for Fourth Amendment purposes.
Hall argued that Walters’ testimony that Christensen would not be free to leave was irrelevant.
“Rather, the analysis is whether, under a totality of the circumstances, an innocent reasonable person in Ms. Christensen's position would feel free to leave under the circumstances,” she wrote. The state maintains that a reasonable person in Christensen’s position would have felt free to do so, she said.
Blanchard disagreed. While not the determining factor, he said, “the presence of uniformed officers arriving on the scene in a marked truck, with at least one of the officers getting out and approaching the car on foot, weighs in favor of a seizure. I reject the State’s thinly developed argument to the contrary.”
Research on brain development of young adults could have been presented in 1997, appeals court says
By Gretchen Schuldt
A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled.
Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer.
Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving.
The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma.
The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies.
In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote.
Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing.
DesJardins held a hearing, Gill wrote.
“The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote.
DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.”
DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission.
The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity.
“At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said.
DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated.
Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.”
By Gretchen Schuldt
A court cannot refuse the return of property based on unproven allegations in a criminal complaint that never went to trial and that the defendant never had a chance to contest, the state Court of Appeals recently ruled.
“The state had a fair opportunity to introduce evidence that (John Dean) Pleuss used the shotgun in the commission of a crime during the initial proceedings but failed to do so,” Appellate Judge Brian W. Blanchard wrote for the three-member District IV Court of Appeals panel. He was joined in his decision by JoAnne F. Kloppenburg and Michael R. Fitzpatrick.
Before Pleuss, now 78, can get his gun back, however, he must return to Monroe County Circuit Court and demonstrate that his failure to file a motion for the return of property by the statutory deadline was excusable neglect. State law requires filing within 120 days of a defendant’s initial appearance; Pleuss filed his motion 127 days after his initial appearance, according to a brief filed by Assistant State Attorney General Donald V. Latorraca opposing the return.
Pleuss allegedly pointed a shotgun at a deputy on Oct. 1, 2020, and the deputy pushed the barrel away, according to the state's brief. As the two talked, Pleuss denied pointing it at the deputy. Pleuss also refused to show the deputy his driver’s license, instead displaying his concealed carry permit, the brief said.
Pleuss was arrested later that day and charged with intentionally pointing a firearm at or towards a law enforcement officer, disorderly conduct, and operating a vehicle without carrying or displaying a license. Pleuss had an initial appearance, according to a defense brief filed by attorney Steven L. Miller, but there were no other court proceedings before the charges were dismissed.
The state said the charges were dismissed in exchange for an apology from Pleuss and his participation in a gun safety course.
When Pleuss sought the return of the shotgun, the prosecutor told Circuit Judge Mark L. Goodman that the state met its burden of establishing that the shotgun was contraband.
“I think the state has done that by the filing of the criminal complaint that demonstrates probable cause of the crimes therein,” the prosecutor said.
Pleuss objected to the state’s total reliance on the complaint, arguing that the state did not meet its “‘burden…in any way, shape, or form,’” Blanchard wrote.
Goodman ruled that Pleuss missed the deadline for seeking return of the gun and that the state had proven, based on the complaint, that the shotgun was used in a crime.
The state, on appeal, said the allegations in the complaint were “substantive evidence” and were admissible hearsay in court. The panel, though, found that the complaint did not meet the standard of trustworthiness required for admissible hearsay as a public record.
"While it is true that a police report standing alone may be admissible evidence ... the State here unambiguously relied exclusively on the factual allegations in the criminal complaint as purported evidence and did not call a witness to offer the police report as piece of evidence," Blanchard wrote.
"The factual allegations in criminal complaints have no evidentiary value unless the applicant has admitted to them or at least failed to dispute them," he said.
Pleuss never admitted in any form that the charges against him were true, Blanchard said.
“In the circuit court Pleuss consistently objected to the state’s use of the allegations in the complaint as evidence,” he said.
The state, he said, “completely failed to meet its burden of proof.”
In returning the state’s missed-deadline argument to Circuit Court, the panel ruled that a flat declaration that the deadline was mandatory could negatively affect others, such as victims, who might have property seized during an investigation and might not even learn that their property is in law enforcement custody until after the 120 days have passed.
By Gretchen Schuldt
A woman convicted of child abuse and neglect will be sentenced anew because Lafayette County District Attorney Jenna Gill breached the plea agreement reached with her, under a state Court of Appeals ruling.
In addition, Jamie Lee Weigel's lawyer, Peter A. Bartelt, "provided ineffective assistance in not objecting to the state's substantial material and substantial breach of the plea agreement," District IV Appellate Judge Jennifer E. Nashold wrote for the three-judge panel. She was joined in the opinion by Appellate Judges JoAnne F. Kloppenburg and Rachel A. Graham.
Weigel was charged with two counts of child abuse and two counts of chronic child neglect in connection with the care of her two young children. Her partner, the children's father, also was charged.
Weigel reached a plea deal under which the state agreed to recommend a sentence of no more than 20 years, including both prison and extended supervision time. As part of the deal, Weigel pleaded guilty to one count of child abuse resulting in great bodily harm and one count of chronic child neglect causing bodily harm.
The other two counts were to be dismissed but read in at sentencing.
When the children's father was sentenced to 20 years in prison and five years of probation, Lafayette County Circuit Judge Duane M. Jorgenson "appeared to assign greater culpability to Weigel, remarking that Weigel’s conduct was worse than the father’s," Nashold wrote. "Thus, both the defense and the State assumed it was unlikely that Weigel would receive a lesser sentence than the father received."
A Department of Corrections pre-sentence investigation recommended a sentence of 14 years in prison and six years of extended supervision. Bartelt submitted a sentencing memo based on an alternative PSI. The memo recommended 10 years in prison, 10 years of extended supervision, and five years of probation, for a total sentence of 25 years.
At the sentencing hearing, Gill said the state's recommendation was for 14 years in prison and six years of extended supervision, but then talked about the sentencing memo and said, "So, there’s not a lot that we’re arguing about today. Both parties agree that 25 years in total is appropriate. The only issue then is the amount of initial incarceration."
Bartelt did not object to the statement. He said later that he recommended a longer than the agreed-upon sentence because he believed the judge would impose a sentence at least as long as the one handed to Weigel's partner.
Jorgenson sentenced Weigel to 20 years in prison and 10 years of extended supervision. Weigel's new lawyer, Cary E Bloodworth, filed post-conviction motions alleging breach of the plea agreement and ineffective assistance by Bartelt. Jorgenson denied them and Weigel appealed.
Gill's explicit recommendation for a 25-year sentence at best was an "end run" around the plea agreement, Nashold wrote. "Such indirect undercutting of the plea agreement is ... prohibited."
The state argued on appeal that it never promised not to recommend a sentence that included probation. Instead, it said, the state agreed only to limit its recommendation for prison and extended supervision.
But, Nashold said, the state did not explicitly recommend probation.
"In any event, the State’s argument fares no better even if we assume that the State’s remarks, in full, were meant to convey its recommendation of a 20-year bifurcated sentence followed by a five-year term of probation," she wrote.
Rather, the panel agreed with Weigel that “the [S]tate’s attempt to inject a technical definition of the word ‘sentence’ into the context of plea negotiations is misguided.”
"Here," Nashold said, "the record shows that both Weigel and the State construed the term 'sentence' broadly, to include any term of probation that might be imposed by the court. At the Machner hearing (a post-conviction hearing regarding the effectiveness of counsel), Weigel testified that she believed that 'everything would be capped at 20 years.' And at sentencing, the state itself used the term 'sentence' to refer to the combined bifurcated sentence and period of probation recommended by Weigel, describing that 'total' 'sentence' as '25 years.' ”
The panel rejected the state's argument that Bartelt's sentencing memo implicitly modified the plea agreement and Weigel was not deprived of the benefits of a bargained-for agreement.
"We agree with Weigel that her strategy in arguing for a 25-year total sentence does not diminish the significance of the state’s breach," Nashold said. She added: "We also agree with Weigel that – given the circuit court’s apparent view that she was more culpable than the father – it was particularly important that the state adhere to the twenty-year cap that it had agreed to, so as to counteract the effect of the father’s sentence."
Bartelt testified that he may not even have realized at the time that Gill breached the plea agreement, Nashold said.
"In any event, we agree with Weigel that counsel’s failure to object would constitute deficient performance even if that failure were based on strategic considerations," she wrote.
Weigel will be sentenced by a different judge.
Appeals panel rules car's marijuana (or CBD?) smell did not justify search of driver
By Gretchen Schuldt
Police did not have probable cause to search a man driving a car that smelled like marijuana when the man himself did not, the state Court of Appeals has ruled.
The decision also revolved partly around the issue of whether the smell of illegal marijuana can be differentiated from that of legal CBD.
Quaheem O. Moore told two officers after a traffic stop that he was driving a borrowed car. The officers, who said they could smell marijuana emanating from the car, acknowledged that they could not smell it on Moore himself, the District IV appeals panel said in upholding a ruling by Wood County Circuit Judge Nicholas Brazeau Jr.
Moore also told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin.
"The officers...informed Moore that they were going to conduct a search of his person based on 'the odor of marijuana' coming from the vehicle," Appellate Judge Rachel A. Graham said in her decision for the three-judge panel. She was joined by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The officers at first found nothing, but eventually found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants.
He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater.
Moore, represented by attorney Eric Sheets, moved to suppress the evidence.
Judge Brazeau acknowledged that "the odor of marijuana in a vehicle, alone, may give officers probable cause to arrest the driver, but...concluded that the officers in this case failed to link the odor to Moore and Moore offered innocent explanations for the odor," Graham wrote.
Moore hit the curb with his car when he was pulled over, but Brazeau also said that was largely irrelevant because the officers did not emphasize any signs of intoxication. The officers also had contended they saw Moore throw a liquid from a car, but Brazeau said that, too, was largely irrelevant.
The state appealed.
Graham, in her opinion, said the state did not even show that the odor was "unmistakably" that of marijuana, as required by state Supreme Court precedent.
Graham also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana.
The Supreme Court had directed courts to consider officers' testimony regarding their training and experience in identifying the odor of marijuana, as well as its strength, recency, and source, she said.
"First, the State did not offer any evidence at the suppression hearing that the officers had training or experience that enabled them to reliably identify the odor of marijuana," she wrote.
The state "did not elicit testimony or any other evidence that either officer had any training or experience relating to the odor of marijuana," Graham said. "Although the state elicited testimony that both officers had conducted at least one traffic stop prior to the traffic stop in question, neither officer was asked about their training or experience in identifying the odor of marijuana, whether raw, burnt, or in liquid form; in identifying the strength, recency, or source of marijuana; or, in distinguishing the odor of marijuana from other odors, including CBD. The state elicited no testimony that either officer had even smelled the odor of marijuana prior to stopping Moore."
The state also said the smell of legal CBD is indistinguishable from that of illegal marijuana and Brazeau accepted that as fact.
"Thus, the officers were confronted with two possible explanations for the odor: legal CBD or illegal marijuana," Graham wrote. "If CBD, which is legal, produces an odor that is indistinguishable from THC, which is illegal, then the odor of CBD may be 'mistaken' for the odor of marijuana."
Still, officers were not required to accept Moore's explanation that he vaped CBD, she said.
"However, with no discernible ability to identify the odor of marijuana or distinguish it from CBD, the officers could not rule out CBD, or even meaningfully undermine it, as the source of the odor. ... The odor cannot be unmistakably that of marijuana if officers are unable to rule out an innocent explanation for the odor," Graham wrote.
The state also failed to link Moore's vaping device to marijuana, Graham said. She also rejected the state's contention that officers could infer that Moore's CBD consumption meant he also smoked marijuana.
"Neither officer testified to having knowledge, based on their training and experience, that people who consume CBD are more likely to consume THC, and the State has not explained why it would be reasonable to draw that inference regardless of the lack of factual support," she said.
"We conclude the officers lacked probable cause to arrest Moore. ...Therefore, the search of Moore was not a lawful search incident to arrest," Graham wrote.
Moore was represented on appeal by attorneys Tracey A. Wood and Joshua Hargrove. The state was represented by Assistant Attorney General Jacob J. Wittwer and Wood County Assistant District Attorney David Knaapen.
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