On Point: C. Briefs/Appendices

State v. Angel Mercado, 2018AP2419-CR, petition for review of a published decision granted 5/19/20; reversed 1/20/21; case activity

Issues (from the State’s petition for review):

1.  Did the court of appeals contravene §901.03(1)(a) when it directly reviewed Mercado’s forfeited challenges to the admission of the victims’ forensic interview videos into evidence?

2.  Did the circuit court court properly admit the victims’ forensic interview videos into evidence at trial?

State v. Chase M.A. Boruch, 2018AP152, 5/19/20, District 3 (not recommended for publication); case activity (including briefs)

Boruch, pro se, filed a Wis. Stat. § 974.06 motion raising a slew of claims related to his conviction, at jury trial, for first-degree intentional homicide. He’d already had an 809.30 postconviction motion and direct appeal (with counsel). He claimed, as a “sufficient reason” for not raising these new claims the first time around, that his postconviction/appellate counsel had been ineffective. The circuit court denied the motion and also refused to waive fees to produce the transcripts Boruch would need to appeal this denial. This is an appeal only of the refusal to waive those fees.

United States v. Sineneng-Smith, USSC No. 19-67, 2020 WL 2200834, May 7, 2020, vacating and remanding 910 F.3d 461 (9th Cir. 2019); Scotusblog page (including links to briefs and commentary)

The Ninth Circuit Court of Appeals reformulated the issues Sineneng-Smith raised in district court and on an appeal of her conviction for violating a federal immigration statute, and invited three organizations to file amicus briefs and participate in further oral argument. (Slip op. at 5-7). The Supreme Court holds the Court of Appeals “departed so drastically from the principle of party presentation as to consitute an abuse of discretion.” (Id. at 3).

Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity

N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless. 

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.