On Point: C. Briefs/Appendices

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 Crawford decision by well over a year.

 State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd

Issue/Holding:

¶13      A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment.

Olson v. Darlington Mutual Ins., 2006 WI App 204

Issue/Holding:

¶4        … The required elements of judicial estoppel are:

            First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis.

State v. Lawrencia Ann Bembenek, 2006 WI App 198, PFR filed 10/3/06
For Bembenek: Joseph F. Owens, Woehrer, Mary L.

Issue: Whether Bembenek’s postconviction motion for DNA testing at State’s expense, as part of an effort to establish her innocence, was barred by her plea agreement whose terms included waiver of her right to direct appeal and collateral attack and “any challenges that might be brought to the underlying factual basis for this plea.”

Holding:

¶15      The record demonstrates that an exchange of promises in return for specific benefits occurred: (1) Bembenek would no longer be convicted of first-degree murder;

State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell

Issue/Holding: Although an “as applied” challenge to a statute may be waived, a facial challenge, in contradistinction, is not waivable, ¶17:

¶18 This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void.

State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough

Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.

Holding:

¶29 Ultimately,

Arents v. ANR Pipeline Co., 2005 WI App 61

Issue/Holding: ¶5 n. 2:

Wisconsin Stat. Rule 809.19(1)(d) and (e) (2001-02) requires the parties to provide in their briefs separate sections for their “statement of facts relevant to the issues presented for review” and argument. In their appeal, the Landowners have, inappropriately, interspersed legal argument and “spin” into what should have been an objective recitation of the factual occurrences of this case.

State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky

Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference),

State v. Mahlik D. Ellington, 2005 WI App 243
For Ellington: Andrea Taylor Cornwall

Issue/Holding: An objection on relevancy grounds does not preserve a confrontation-based argument, ¶14.