On Point: d. Missing transcripts

Manitowoc County HSD v. K.R., 2022AP1975-78, 12/27/23, District II (one-judge decision; ineligible for publication); case activity

Presented with a confusing pro se attack on permanency orders entered in these underlying CHIPS cases, COA affirms largely because it cannot ascertain the nature of the appellant’s challenge.

State v. Chase M.A. Boruch, 2018AP152, 5/19/20, District 3 (not recommended for publication); case activity (including briefs)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

State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)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State v. Scott L. Nutting, 2017AP2049, 10/2/19, District 2, (not recommended for publication); case activity (including briefs)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. Robert James Pope, Jr., 2017AP1720-CR, petition for review granted 4/9/19; case activity (including briefs)

Issues:

Where no transcripts of a jury trial occurring over 20 years ago are available in a direct appeal and appellate counsel is new to the case, does application of  State v. Perry’s requirement that appellant assert a “facially valid claim of error” that might be supported by a portion of a missing transcript deny the constitutional right to meaningful appellate review?

Whether a statement on transcript filed in an appeal binds an appellant in all future appeals in the same case?

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.

State v. Robert James Pope, Jr., 2017AP1720-CR, 11/13/18, District 1 (not recommended for publication), petition for review granted 4/9/19, affirmed, 2019 WI 106, ; case activity (including briefs)

Here’s good one for SCOW. A jury convicted Pope of 2 counts of 1st degree homicide in 1996. His lawyer forgot to file a notice of intent. Twenty years later, the State stipulated to reinstatement of Pope’s direct appeal. He tried to order transcripts but couldn’t because the court reporters had destroyed their notes. The circuit court ordered a new trial, but the court of appeals reversed because his new lawyer could not predict what “colorable claims” lurked in transcripts that weren’t prepared and could never be reconstructed.

Lafayette County v. Ian D. Humphrey, 2016AP966, District 4, 8/16/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

Humphrey wants appellate review of the forfeiture judgment entered against him for operating a vehicle while suspended. He doesn’t get it.

Village of DeForest v. Alexei Strelchenko, 2016AP1814, 2/16/17, District 4 (1-judge opinion, ineligible for publication); case activity

Just how did Strelchenko misuse his drone? Unfortunately, we do not know. He proceeded pro se and neglected to include a copy of the trial transcript in the appellate record. It is the appellant’s job to ensure that the record is sufficient for the court of appeals to review the issues.

City of Milwaukee v. Jerry D. Butler, 2015AP1537, 1/26/16, District 1 (one-judge decision; ineligible for publication); case activity

A pro se appellant’s failure to comply with briefing rules results in his appeal being dismissed as “defective.” (¶11).