On Point

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br.

Sentencing – Guidelines, General Purpose

¶7        While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its commission … and the defendant’s personality,

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.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply

Traffic Stop – Reasonable Suspicion – § 346.072(1)
“We are satisfied that a reasonable officer could reasonably suspect that, by driving 28 to 30 miles per hour in a 25-mile-per-hour zone within 2 to 3 feet of the squad cars, Statz did not slow down, maintain a safe speed for traffic conditions,

court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.

Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:

Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,

court of appeals decision (1-judge; not for publication)

TPR – Closing Argument
County’s closing argument exhorting jury to consider that gal “represents the child and what’s best for the child” merely described “how the parties and their attorneys were aligned,” not that jury “should consider the ‘best interest’ of the child.”

TPR – Evidence
Evidence that Amber voluntarily terminated her rights to her firstborn child was probative of “the fact to be proven,

court of appeals decision (1-judge; not for publication); Lora B. Cerone, SPD, Madison Appellate

TPR – Stipulation, Grounds
Signed stipulation to grounds, which effectively withdrew jury demand, upheld where trial court addressed parent in court and on record, and she “acknowledged her understanding clearly, repeatedly, and without equivocation.”

TPR – New Evidence
Postdisposition change in placement affect “advisability of the original adjudication” and therefore didn’t amount to “new evidence”

court of appeals decision

TPR – Forfeiture of Jury Trial
Failure to appear at initial hearing and make timely request forfeited right to jury trial; trial court’s ultimate refusal to enter default judgment “did not return the case to the initial hearing stage or reinstate Luis’s right to a jury trial”; nor did filing of amended petition reset this clock; finally, the court suggests that denial of right to jury trial was,

court of appeals decision (3-judge; not recommended for publication); Randall E. Paulson, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply

Pre-Sentence Plea Withdrawal
Adverse findings of fact doom pre-sentencing plea withdrawal premised on claims: attorney rushed Watson into pleading out, but trial court accepted attorney’s testimony to contrary; and Watson hadn’t seen victims’ videotaped statements, but Watson knew through police reports and discussions with attorney nature of their allegations.

court of appeals decision; for Pittman: Kathleen M. Quinn; BiC; Resp. Br.; Reply Br.

Armed Robbery, § 943.32 – Dangerous Weapon
Although Rittman neither in fact possessed a dangerous weapon, his cautioning that no one would get hurt if the teller gave him money coupled with putting his hand in his pocket sufficed to prove the victim’s reasonable belief that he was threatening to use a dangerous weapon:

¶10      The statutes tell us in what is mostly a tautology that: “‘Reasonably believes’ means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.” Wis.