On Point blog, page 94 of 118
Right to Retained Postconviction Counsel of Choice
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:
¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …¶10 Martinez and Tamalini provide no guidance on the question presented.
Knight Habeas Petition: Collateral Attack on Prior No-Merit Affirmance
State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm
Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.
The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side,
Motion to Reconsider – Basis, Generally
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding:
¶8 To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397,
No Waiver Bar, Collateral Attack Based on Newly Discovered Evidence
State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence,
Waiver – Taser Device Worn by Defendant, Failure to Raise Objection
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶15 The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.
Appellate Procedure – Harmless Error: SVP Trial
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶57 In summary, while the termination from the community treatment program and the rule violation were presented as conduct that, along with the hotel incident,
Appellate Procedure – Harmless Error: General Test
State v. Ronell E. Harris, 2008 WI 15, affirming unpublished decision
For Harris: Ralph J. Sczygelskis
Issue/Holding: Various discovery and evidentiary violations amounted to harmless error, whether taken singly (¶¶41-59, ¶87-90) or cumulatively (¶¶109-113).Harmless error discussions are largely fact-specific, and this case is no exception. But it is noteworthy for its recognition that the “court has formulated the test for harmless or prejudicial error in a variety of way,” ¶42.
§ 943.10, Burglary – Sufficiency of Evidence – Owner’s Nonconsent
State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶37 Owner nonconsent, like other elements of criminal offenses, may be proved by circumstantial evidence. See Bohachef v. State, 50 Wis. 2d 694, 700-01, 185 N.W.2d 339 (1971). The test on review is whether the evidence presented was sufficient to prove guilt beyond a reasonable doubt,
§ 943.20(1)(b) and (3)(c) – Theft as Trustee/Bailee in Business Setting – Elements – Sufficiency of Evidence
State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208
For Doss: Robert R. Henak
Issue/Holding:
¶57 Next, we address Doss’s argument that there was insufficient evidence to support her conviction under Wisconsin Statute § 943.20(1)(b). Doss correctly recites the elements the State was required to establish to obtain a conviction: that (1) she had possession of money as a result of her position as a personal representative of her father’s estate;
Appellate Procedure: Jurisdiction/Finality of Order – (State’s) Motion to Reconsider Oral Ruling
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding: Jurisdiction attaches to state’s appeal from denial of reconsideration of an oral ruling dismissing a count, ¶7 n. 5:
The State appeals from the written order denying the motion for reconsideration. White, citing Ver Hagen v. Gibbons, 55 Wis. 2d 21, 25,