On Point: 1. Appeals

Maya Elaine Smith v. Jeff Anderson, 2017 WI 43, dismissing a petition for review of 366 Wis. 2d 808, 874 N.W.2d 347 (Ct. App. 2016)(unpublished); case activity (including briefs)

Recently, SCOW has marched ahead and decided issues that the parties did not properly preserve or brief–to the detriment of indigent defendants.  Recall what happened a few weeks ago in State v. Denny and earlier in State v. Sulla and State v. Smith. But in this case, after briefing and argument by the parties and an amicus curiae, a 3-justice majority (Ziegler and RG Bradley didn’t participate) showed remarkable restraint. It issued a per curiam opinion dismissing a petition for review as improvidently granted because nobody preserved an issue the court of appeals declined to decide. The upshot? It appears that SCOW has rescued West Bend Mutual Insurance Company from an appellate blunder and possible defeat. The blunder presents a teachable moment for appellate lawyers trying to preserve issues for supreme court review.

State v. Kyle Lee Monahan, 2014AP2187, 4/27/17, District 4 (not recommended for publication) review granted 11/13/17; Affirmed 6/29/18; case activity (including briefs)

Kyle Monahan was convicted of OWI homicide after a jury trial. The trial court excluded evidence offered to show that Monahan was not, in fact, driving the vehicle when it crashed. On appeal, the state agrees with Monahan that the evidence should have come in, but argues that its exclusion was harmless. The court of appeals agrees with the state.

State v. John A. Augoki, 2016AP231-CR, 4/25/17, District 1 (not recommended for publication); case activity (including briefs)

Augoki raises two claims on appeal of his jury-trial conviction of three sexual assaults: that the jury heard other-acts evidence it should hot have heard (raised here as plain error) and that the court unconstitutionally limited his cross-examination of a state expert. The court of appeals rejects both in a fact-intensive opinion.

State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity

The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!

State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)

Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.

State v. Peter J. Long, 2016AP729, 3/28/17, District 1 (one-judge decision, ineligible for publication); case activity (including state’s brief)

Peter Long filed a Wis. Stat. § 974.06 arguing that his sentence for OWI-4th should be commuted or modified to the maximum sentence for an OWI-3rd, because one of his priors was uncounseled.

State v. Julius Alfonso Coleman, 2013AP2100-CR, 3/21/2017, District 1 (not recommended for publication); case activity (including briefs)

Julius Coleman was set up by a confidential informant to participate in an armed robbery of a nonexistent drug dealer named “Poncho.” He challenges the admission of various statements at trial on the ground that they were taken in violation of Miranda. The court of appeals concludes that any error in their admission was harmless beyond a reasonable doubt, but along the way (and not for the first time) seems to confuse the test for harmless error with that for sufficiency of the evidence.

Review of an unpublished court of appeals decision; affirmed 4/10/18, case activity (including briefs)

Issues (composed by On Point)

1. Whether the safe transport statute, which permits transporting a handgun in a vehicle, forecloses convicting a non-permit-holder under the concealed carry law for having a handgun in his vehicle.
2. Whether the safe transport statute’s apparent contradiction of the concealed carry statute renders the law unconstitutionally vague.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?