On Point blog, page 1 of 2
Roselva Chaidez v. United States, USSC No. 11-820, cert granted 4/30/12
Question Presented (from cert petition):
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
SVP Commitment – Jury Instructions: “Mental Disorder”
State v. Jonathan Phillips, 2010AP1490, District 4, 4/26/12
court of appeals decision (not recommended for publication); for Phillips: Steven D. Grunder, SPD, Madison Appellate; case activity; originally recommended for publication, changed per order 5/1/12
Although admittedly “inconsistent” in the way it defines “mental disorder,” when read “as a whole,” the pattern jury instruction for ch. 980 commitments (Wis JI—Criminal 2502) adequately conveys the required nexus between mental disorder and serious difficulty controlling behavior.
State v. Courtney C. Beamon, 2011 WI App 131, rev. granted 4/25/12
court of appeals decision; for Beamon: Donna L. Hintze, SPD, Madison Appellate; case activity; prior post
Elements, Fleeing, § 346.04(3) – Instructions – Sufficiency of Proof – Harmless Error
Issues (from Beamon’s Petition for Review):
Is a jury instruction which describes the factual theory alleged to satisfy an element legally erroneous?
In a criminal case, are the instructions given the jury the law of the case against which the sufficiency of the evidence must be measured or,
Court of Appeals Publication Orders, 4/12
court of appeals publication orders, 4/25/12
On Point posts from this list:
2012 WI App 42 La Crosse Tribune v. Circuit Court for La Crosse County
2012 WI App 46 State v. Lamont L. Travis
2012 WI App 47 State v. Matthew R. Steffes
2012 WI App 48 State v. Dennis R. Thiel
2012 WI App 49 Village of McFarland v.
The Plotkin Analysis: judicial substitution in criminal cases; right to refuse probation; access to juvenile records; hearsay at preliminary hearings
I will periodically include a brief description of pending legislation that affects the State Public Defender’s practice. With the Legislature’s regular session having ended on March 16, I wanted to summarize a couple of bills that either passed in the closing days of session, or bills that failed to pass.
One bill failing to pass was Senate Bill 74/Assembly Bill 109. As originally drafted, this legislation would have eliminated judicial substitution in criminal cases.
Habeas – Procedural Bar: Waiver by State
Patrick Wood v. Milyard, USSC No. 10-9995, 4/24/12, reversing 403 Fed. Appx. 335 (10th Cir 2010)
This case concerns the authority of a federal court to raise, on its own motion, a statute of limitations defense to a habeas corpus petition. After state prisoner Patrick Wood filed a federal habeas corpus petition, the State twice informed the U. S. District Court that it “[would] not challenge,
Intentionally Mistreating / Shooting Animal, Resulting in Death, §§ 951.02 951.09 and 951.18(1): Intent not Element – Pellet Gun Is Weapon
State v. Shawn M. Klingelhoets, 2012 WI App 55 (recommended for publication); for Klingelhoets: Robert R. Henak; case activity
Intentionally Mistreating Animal, Resulting in Death, §§ 951.02 and 951.18(1) – Intent Element
Intentionally mistreating an animal, resulting in the animal’s death, contrary to Wis. Stat. §§ 951.02 and 951.18(1), doesn’t require intent to kill:
¶17 In sum, the plain language of Wis. Stat. § 951.18(1) does not require a defendant to have intentionally mutilated,
Shiffra-Green Procedure – Privileged Records – Remedy
State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12
court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D. Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity
Shiffra-Green Procedure – Privileged Records – Remedy Where Witness Declines Consent for in Camera Review
Johnson, charged with sexual assault of his stepdaughter T.S.,
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional; Constitutional, as Applied; Defense of Coercion, § 939.46(1)
State v. Clarence E. Brown, 2011AP2049-CR, District 1, 4/17/12
court of appeals decision (1-judge, not for publication); for Brown: Daniel R. Drigot; case activity
Carrying Concealed Weapon, § 941.23 (2009-10) – Facially Constitutional
The court upholds the constitutionality of the prior version of § 941.23, CCW, as not violating the right to bear arms (since-modified, to allow conceal-carry under specified circumstances, 2011 WI Act 35).
Felon-in-Possession, § 941.29: Constitutionality, Second Amendment
State v. Thomas M. Pocian, 2012 WI App 58 (recommended for publication); for Pocian: Martin E. Kohler, Craig S. Powell, Geoffrey R. Misfeldt; case activity
¶2 In 1986, Thomas M. Pocian was convicted of writing forged checks, a felony. Twenty-four years later, Pocian was prosecuted under Wis. Stat. § 941.29, which prohibits a felon from possessing a firearm. Relying on Heller and McDonald,