On Point blog, page 71 of 120
Judicial Estoppel – Generally
State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity
¶32 We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel. Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,
Ineffective Assistance – Prejudice; Trial Court Exercise of Discretion – Over-Reliance on Party’s Submission
State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12
court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity
Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.
¶8 Wisconsin law recognizes that guns and drug dealers go together. See State v. Guy, 172 Wis. 2d 86,
TPR – Default Judgment as to Grounds – Sufficiency of Evidence; § 48.415(6) – Constitutional Challenge, Vagueness
Dane Co. DHS v. Sophia S., 2011AP2639, District 4, 2/23/12
court of appeals decision (1-judge, not for publication); for Sophia S.: Faun M. Moses; case activity
Although the parent isn’t required to object to the sufficiency of evidence adduced in support of a default judgment on grounds for termination (the court rejecting the County’s argument on this point), there was a sufficient factual basis for the default.
Carrying Concealed Weapon: Definition of “Dangerous Weapon” re: “Operated by Force of Gunpowder”
State v. Sean T. Powell, 2012 WI App 33 (recommended for publication); for Powell: Richard L. Kaiser; case activity
Conviction for CCW, § 941.23, requires proof of a “dangerous weapon,” which is in turn defined under § 939.22(10) to include “any firearm.” The pattern instruction, Wis JI-Criminal 910 embellishes the definition: “A firearm is a weapon that acts by force of gunpowder.” Powell argues that, because the State failed to show that his loaded,
Probation – Length of Term, Authority to Reduce
State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity
¶4 We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation. Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”
State v. Gerald D. Taylor, 2011AP1030-CR, District 3/4, 2/9/12, review granted
court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12
Guilty Pleas – Plea Colloquy
Certified Issue:
Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.
The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.
Interrogation – Scrupulously Honoring Right to Silence
State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12
court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity
Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.
In Re: Bridget Boyle-Saxton, 7th Cir No. D-12-0002, 2/2/12
7th circuit decision, imposing discipline
Sanctions – Abandonment of Client
It is apparent from this final motion for additional time that Boyle-Saxton elected to put work for other clients ahead of her obligations to Rodriguez and this court. That is unprofessional; lawyers have an ethical obligation to take no more work than they can perform. …
…
She is unfit to practice law in this court.
TPR – Jury Instructions: Waiver of Issue; Ineffective Assistance
Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12
court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity
Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.
¶6 Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.
Juror Bias / Disqualification – Waiver of Issue: Use of Peremptory to Remove Juror
State v. Sharon A. Sellhausen, 2012 WI 5, reversing 2010 WI App 175; for Sellhausen: Byron C. Lichstein; case activity
The trial judge’s daughter-in-law was part of the jury pool; Sellhausen didn’t seek her removal for cause, but used a peremptory to strike her, which rendered harmless any possible error in the trial judge sua sponte failing to remove the juror for cause.