On Point: C. Briefs/Appendices

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. Kody K. Johnson, 2019AP1058-CR, District 4, 1/9/19, (1-judge opinion, ineligible for publication); case activity (including briefs)

Johnson accepted a negotiated disposition of 3 contempt charges stemming from his interference with child custody. He then moved to withdraw his plea arguing that the charges had no factual basis and were multiplicitous.

State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)

In the most absurd decision this term (still time for worse), SCOW has denied a defendant sentenced to life without parole both a direct appeal and a new trial because the court system destroyed all of his trial transcripts. The defendant “sat on his rights,” said the majority opinion, written by Justice Ziegler. When his lawyer failed to file a timely notice of intent to pursue postconviction relief, he should have immediately, without counsel, figured out how to defend his appeal rights and effectively defended them. He didn’t. No relief.

State v. Scott L. Nutting, 2017AP2049, 10/2/19, District 2, (not recommended for publication); case activity (including briefs)

At Nutting’s trial for sexual assault of a child, the State played parts of an audio recording of his custodial interview, but court and counsel neglected to make a record of them. Some would have been highly prejudicial to Nutting, so he requested a new trial. The court of appeals held that the postconviction court, the DA and defense counsel were able to  reconstruct the record sufficiently to give Nutting a meaningful appeal. It also denied Nutting’s claims for Brady violations.

State v. Troy K. Kettlewell, 2018AP926, 9/18/2019, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

This is a very fact-intensive OWI case and the court is to be commended for really critically examining what all these facts add up to: not much. As in, not much reason to think Kettlewell was in any danger, so no good reason to go into his house without a warrant.

State v. Eric L. Vanremortel, 2018AP417, 9/4/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanremortel was charged with disorderly conduct for an incident in which he followed the wife of a retired police officer in her car, then repeatedly got out of his own car and shouted at her. The state sought to admit evidence of three prior incidents involving Vanremortel following and/or shouting at police officers, including one that happened a few weeks before the charged conduct and involved the wife’s retired-officer husband. The circuit court admitted the evidence, finding it satisfied the test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and Vanremortel appeals.

County of Dunn v. Cashe L. Newville, 2018AP1167, 8/6/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Newville was pulled over by a sheriff’s deputy who observed that, among other things, his license plate lamps weren’t working. An arrest on suspicion of operating under the influence of methamphetamine followed. The court of appeals blesses every step in the investigation that led to that arrest.

State v. Medford B. Matthews, III, 2019 WI App 44; case activity (including briefs)

It’s a crime in Wisconsin to have sex with a person under 18. Specifically, it’s a misdemeanor, if that person is 16 or older—like the 17-and-a-half-year-old alleged victim here. But, it’s tough to have sex without (1) being in a private (or “secluded”) place and (2) exposing one’s genitals. And while the legislature has codified the obvious difference between having sex with,

Village of McFarland v. Dale R. Meyer, 2018AP2130, 5/23/19, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

Harsh! That’s best description for this court of appeals decision sanctioning Meyer for his pro se appeal of his first OWI. The decision runs afoul of Amek Bin- Rilla v. Israel, 113 Wis. 2d 514, 335 N.W. 384 (1983) and Howell v. Denomie, 2005 WI 81, 282 Wis. 2d 130, 698 N.W.2d 62. Hopefully, a lawyer will take Meyer’s appeal, file a petition for review, and at least get the frivolous finding reversed. 

State v. Dale Andrejczak, 2019AP285, 5/23/19, District 4 (1-judge opinion, ineligible for publication); case activity (including response brief only)

Talk about disparate treatment. In a considered, respectful ruling against a different pro se appellant, the court of appeals here affirms a conviction for obstructing an officer out of deference to the circuit court’s credibility determinations.