On Point: 1. Appeals

Sheboygan County v. Terry L.M., 2014AP2010, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket

The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.

State v. Zoltan M. Peter, 2014AP1589-CR, 1/1/15, District 2 (1-judge opinion; ineligible for publication); click here for briefs and docket

Peter was found guilty of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood. He moved to suppress the marijuana that the police seized from his car, arguably in violation of the plainharm view doctrine and lost. The court of appeals found the argument baffling.

Lawrence Owens v. Stephen Duncan, 7th Circuit Court of Appeals Case No. 14-1419, 3/23/15, cert. petition granted, 10/1/15; petition dismissed as improvidently granted, 1/20/16

The Seventh Circuit grants habeas relief to Owens, who was convicted of murder after a bench trial, because the trial judge’s finding of guilt was based on evidence that did not exist and thus denied Owens’s right to due process of law in violation of the Fourteenth Amendment, Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (“one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial,” quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).

State v. Rory A. McKellips, 2015 WI App 31, petition for review granted 11/16/15, reversed, 2016 WI 51; case activity (including briefs)

McKellips is entitled to a new trial on charges he used a computer to facilitate a child sex crime because the jury was erroneously instructed to decide whether McKellips’s cell phone constituted a “computerized communication system,” when it should have been instructed to decide whether McKellips’s uses of the phone constituted communication via a “computerized communication system.”

State v. Joshua Berrios, 2014AP971-CR, District 1, 3/10/15 (not recommended for publication); case activity (including briefs)

A witness named Trevino had been barred pre-trial from identifying Berrios as the person who shot him; but on cross-examination Trevino unexpectedly testified that Berrios was the shooter. This error does not merit a new trial in the interest of justice, nor does it support a claim of ineffective assistance of counsel.

State v. Eddie Lee Anthony, 2015 WI 20, affirming unpublished COA decision; click here for docket and briefs

Resolving an issue of first impression, SCOW has decided that a defendant may forfeit his constitutional right to testify by stating an intent to bring up irrelevant matters or by engaging in conduct incompatible with the assertion of that right. Also, the erroneous denial of the right to testify is subject to a harmless error analysis–even where the record shows the defendant would testify to both relevant and irrelevant matters.

State v. Eduardo Ivanez, 2013AP1901-CR, 2/26/15,  District 1 (not recommended for publication); click here for briefs

Ivanez appealed his conviction for 1st-degree intentional homicide and hiding a corpse on the grounds that statements he made to the police should have been suppressed and the admission of those statements impelled him to testify that he killed the victim in self-defense, a dubious trial strategy. The court of appeals assumed, without deciding, that the trial court had erred but affirmed under the harmless error doctrine.

State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs

This decision smells like SCOW bait.  Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.

State v. Nelson Luis Fortes, 2015 WI App 25; case activity (including briefs)

A “misunderstanding” about what sentence the state could recommend under the plea agreement did not entitle Fortes to plea withdrawal or resentencing because after the misunderstanding became evident at the sentencing hearing, Fortes elected to proceed rather than seek an adjournment with a possible eye toward plea withdrawal.

State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket

Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.