On Point blog, page 9 of 25
SCOW to decide if failing to object to consideration of information at sentencing forfeits right to review
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?
Refusal hearing argument didn’t clearly raise issue argued on appeal, so it’s forfeited
State v. Danny L. Waters, 2018AP1455, District 4, 5/2/19 (one-judge decision; ineligible for publication); case activity (including briefs)
The argument Waters made at his refusal hearing wasn’t sufficiently clear to preserve the issue for appeal.
Guilty plea waiver rule +failure to respond = no decision on the merits
State v. Daniel W. Morse, 2018AP1293-CR, District 1, 3/19/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Morse challenges his convictions for three counts of misdemeanor theft by embezzlement, but the court of appeals holds he’s waived his challenges by pleading guilty.
No record, no record citations, no legal argument, no chance on appeal
State v. Tracy E. McCarthy, 2018AP484, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)
McCarthy’s pro se appeal in his disorderly conduct case fails on multiple grounds. His brief doesn’t cite to the record and the record doesn’t include any transcripts. He doesn’t develop any legal arguments in support of his claims about the alleged errors at trial. Moreover, there wasn’t a trial: he entered a plea to an ordinance violation.
Failure to raise issue in circuit court forfeits it on appeal
Monroe County v. B.L., 2018AP694, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity
B.L. argues on appeal that the doctor who initiated his emergency detention could not also be one of the examiners appointed under Wis. Stat. § 51.20(9)(a)1.. The court does not address the argument, because B.L. raises it for the first time on appeal.
Failure to object during sentencing hearing to court’s consideration of information means the issue is forfeited
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.
COA finds hearsay and right to presence claims forfeited and harmless
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.
SCOW addresses counsel’s duty to investigate client’s brain injury, clarifies when lawyer may testify as expert at Machner hearing
State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)
This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.
“Boilerplate” motion to suppress did not contain sufficient allegations to merit an evidentiary hearing
State v. Dylan D. Radder, 2018 WI App 36; case activity (including briefs)
In a decision every trial-level criminal defense lawyer must read, the court of appeals affirms the denial of a motion to suppress without an evidentiary hearing because the motion failed to allege sufficient facts to raise a question of disputed fact that must be resolved at a hearing. Understand the standards set out in this decision, make sure your motions attempt to adhere to them, and be prepared to argue your suppression motions satisfy them, as every prosecutor and trial judge will be eager to invoke this decision to deny your motions without a hearing.
For IAC claims in multi-count cases, SCOW says courts may determine prejudice on a count-by-count basis
State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity
Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.