On Point: 1. Appeals

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude,

State v. Thomas A. Mikulance, 2006 WI App 69
Pro se

Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,

State v. Ricky J. Fortier, 2006 WI App 11

Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:

¶15      Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal. 

State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck

Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled.

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 ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella

Issue/Holding:

¶13. Certiorari review for parole revocation is limited to four questions: “(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.” 

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73<
For Stuart: Christopher W. Rose

Issue/Holding:

¶40      The test for this harmless error was set forth by the Supreme Court in Chapman v. California, 386 U.S. 18 (1967), reh’g denied, 386 U.S.

State v. Paul J. Stuart, 2005 WI 47, reversing unpublished COA opinion; and overruling State v. Paul J. Stuart, 2003 WI 73
For Stuart: Christopher W. Rose

Issue/Holding: Confrontation error deemed harmful, where the following evinced the tainted evidence’s impact: prosecutor’s litigation strategy, ¶51; jury’s reaction (which included repeated requests to have tainted testimony read back;

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion
For Shannon R.: Brian C. Findley, SPD, Madison Appellate

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner.

State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella

Issue/Holding:

¶11. Since granting the petition for review in this case, we have determined that the issue presented is moot as to Riesch. “An issue is moot when its resolution will have no practical effect on the underlying controversy.” State ex rel. Olson v. Litscher,