On Point: C. Briefs/Appendices

Winnebago County DHHS v. Thomas C. W., 2010AP847, District 2, 3/16/11

court of appeals decision (1-judge, not for publication); for Thomas C.W.: Theresa J. Schmieder; case activity

Though trial counsel was ineffective with respect to a single discrete oversight – failure to lodge a meritorious motion for judgment notwithstanding verdict as to one of the 3 grounds for termination – the court discerns no basis to doubt either of the remaining 2 grounds,

Donna J. Murr v. St. Croix County Board of Adjustment, 2008AP2728, District 3, 2/15/11

court of appeals decision (recommended for publication); case activity

¶18 n. 11:

The Board’s response brief repeatedly refers to Murr as plaintiff.  We remind counsel that references should be to names, not party designations.  See Wis. Stat. Rule 809.19(1)(i).

Surpassingly minor point? Sure –

Shirley Anderson v. Northwood School District, 2011 WI App 31; case activity

¶7 n. 3:

Northwood cites a circuit court decision from another case as persuasive authority, correctly noting that such a citation does not violate WIS. STAT. RULE 809.23(3), which prohibits citing unpublished appellate cases decided before July 1, 2009.  However, Northwood then emphasizes we affirmed the circuit court, provides citation to the 2005 unpublished appellate court decision,

City of Shawano v. Darlene F. Sense, 2010AP2193-FT, District 3, 2/8/11

court of appeals decision (1-judge, not for publication); case activity; Memo Br.; Memo Resp.; Memo Reply

¶10      As a final matter, we address certain deficiencies in Sense’s appellate brief.  First, Sense’s repeated references to “appellant” and “respondent” throughout her brief violate WIS. STAT. RULE 809.19(1)(i), which requires reference to the parties by name,

Thomas Vitrano v. Milwaukee Police Department, 2010AP1987, District 1, 1/11/11

court of appeals decision (1-judge, not for publication); pro se; case activity; Resp. Br.

footnote 2:

We note with some frustration that neither party included a single citation to the record in their respective briefs in violation of Wis. Stat. Rule 809.19(1)(d).  Record cites are helpful to the court and are required even when the record is not voluminous. 

State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply

Ineffective Assistance – Inconsistent Defenses

Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.

¶15      First,

State v. Michael E. Ballenger, 2010AP664-CR, District 3, 11/16/10

court of appeals decision (1-judge, not for publication); for Ballenger: Ryan D. Lister; Ballenger BiC; State’s Resp.

Appellate Procedure – Sanction

Ballenger’s brief’s appendix does not include any portion of the suppression motion hearing transcript—neither deputy Campbell’s testimony nor the court’s factual findings or reasoning for denying the motion.  Yet, as required by rule,

Voluntariness – Statements to Probation Officer

court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.

Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation –

State v. Morris L. Harris, 2009AP2833-CR,  District 1, 10/13/10

court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply

Lesser-Included Instruction – Battery

Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,

State v. Richard Martin Kubat, 2010AP509-CR, District 3, 9/21/10

court of appeals decision (1-judge, not for publication); for Kubat: Marc Grant Kurzman; BiC; Resp.

Battery – Self-Defense – Sufficiency of Evidence

A verbal confrontation between truckers at a truck stop eventuated in Belcher disabling Kubat’s truck and inviting Kubat to get his punk ass out of his cab “and get it.” Kubat accepted the invitation and brought his tire knocker along as his own guest.