On Point: a. Failure to object

State v. Carrie E. Counihan, 2017AP2265-CR, petition for review granted 5/14/19, and State v. Donavinn Coffee, 2017AP2292-CR, petition for review granted 5/14/19; case activity (Counihan; Coffee)

Issues:

Does a defendant forfeit his right to challenge a judge’s consideration of information at sentencing by failing to object to the information at the time of sentencing?

If trial counsel does not object to the court’s consideration of the information and the defendant alleges postconviction that trial counsel was ineffective for failing to object, what is the standard for determining whether trial counsel’s failure was prejudicial?

State v. Carrie E. Counihan, 2017AP2265-CR, District 3, 11/6/2017 (one-judge decision; ineligible for publication), petition for review granted 5/14/19, modified and affirmed, 2020 WI 12, ; case activity (including briefs)

At Counihan’s sentencing, the circuit court announced it had researched the outcomes in other cases with similar charges and then used that information in sentencing Counihan to jail time. Counihan moved for resentencing, arguing the circuit court violated due process because she didn’t have notice it had collected information about other cases or the opportunity to address the information at sentencing. The court of appeals holds the claim is forfeited because trial counsel didn’t object at the sentencing hearing. It also holds trial counsel’s failure to object wasn’t prejudicial.

State v. Delano Maurice Wade, 2017AP1021, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Wade appeals his jury-trial conviction of sexual assault and false imprisonment. He argues that certain of his accuser’s statements, related by police officers on the stand, were hearsay, and that the court erred in addressing a jury question when he was absent.

State v. D.M.S.W., Sr., 2018AP124-125, 4/3/18, District 1, (1-judge opinion, ineligible for publication); case activity

¶9 We conclude that D.M.W., Sr. waived his right to appellate review of the circuit court’s decision to sua sponte sever the parents’ hearings. Prior to the fact finding hearings, the circuit court informed D.M.W., Sr. that it would sever the fact finding hearings because the parents had a history of domestic abuse and the court did not find it appropriate to conduct fact finding simultaneously. D.M.W., Sr., pro se at the time, did not object. The court also explained its decision to standby counsel and asked counsel to explain the severance issue to D.M.W., Sr. The court informed the parties that they would have an opportunity to address any concerns pertaining to severance. D.M.W., Sr. did not raise any concerns as to this issue. Nor did counsel raise any objections to the severance of the parents’ disposition hearings after the court explained the basis for its decision. . . .It is well established law that an issue not raised in the circuit court is deemed waived for appellate review. See State v. Nelson, 146 Wis. 2d 442, 457, 432 N.W.2d 115 (Ct. App. 1988) . . .

State v. Adam M. Zamora, 2016AP1923-CR, District 2, 9/27/17 (not recommended for publication); case activity (including briefs)

The circuit court properly exercised its discretion in determining that an expert witness called to testify about child sexual assault victim reporting behaviors met the so-called Daubert standard codified in § 907.02(1).

State v. Jesus C. Gonzalez, 2015AP784-CR, 3/8/16, District 1 (not recommended for publication); case activity (including briefs)

Gonzalez raises two challenges to his conviction, at jury trial, of reckless homicide and reckless endangerment. The court of appeals finds any error harmless.

State v. Joseph William Netzer, 2015AP213, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity

¶1     …. Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,

State v. Robert C. Blankenheim, 2015AP239-CR, District 2, 7/8/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Blankenheim’s challenges his OAR conviction by arguing that he was unlawfully stopped, that the evidence wasn’t sufficient to prove operation on a highway, and that the police officer wasn’t a credible witness. The court of appeals disagrees “on all points….” (¶1).

State v. Eric L. Nigl, 2014AP1876-CR, District 4, 4/30/15 (not recommended for publication); case activity (including briefs)

Nigl challenged his conviction for a sex offender registry violation by attacking the validity of the juvenile delinquency disposition that required him to register. The court of appeals holds Nigl forfeited his challenge because he could have sought a waiver or stay of the registration requirement at the time of the delinquency adjudication.

Sheboygan County v. Terry L.M., 2014AP2010, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket

The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.