On Point: 1. Appeals

State ex rel. Luis Santana v. Endicott, 2006 WI App 13

Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim,

State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak

Issue/Holding:

¶23      Where a defendant has specifically directed counsel not to file a no-merit report after being advised of his or her options, counsel is not free to ignore the defendant’s direction. We discussed the nature of the attorney-client relationship in State v.

State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak

Issue: Whether Van Hout waived his right to appellate counsel where he rejected counsel’s offer of a no-merit report and then, after having been warned of the dangers of proceeding pro se, chose neither to open an envelope containing information counsel’s motion to withdraw nor to respond to the court of appeals order granting the motion.

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: Failure to move for mistrial waived any objection to the prosecutor’s closing argument, ¶60. Nor do the comments rise to the level of plain error necessary to overcome waiver:

¶61      The State points out that, in denying Schutte’s motion for postconviction relief,

State v. Jeffrey Lorenzo Searcy, 2006 WI App 8
For Searcy: Joseph L. Sommers

Issue/Holding: Failure to raise a Crawford objection didn’t amount to waiver: “However, Searcy could not have raised at trial a Confrontation Clause claim based on Crawford v. Washington, 541 U.S. 36 (2004), because his December 2002 trial preceded the March 2004 Crawford decision by well over a year.

 State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd

Issue/Holding:

¶13      A valid guilty or no contest plea waives all nonjurisdictional defenses to a conviction, including constitutional violations. See State v. Riekkoff, 112 Wis. 2d 119, 122-23, 332 N.W.2d 744 (1983). One exception to this rule is the claim of ineffective assistance of counsel under the Sixth Amendment.

Olson v. Darlington Mutual Ins., 2006 WI App 204

Issue/Holding:

¶4        … The required elements of judicial estoppel are:

            First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.

State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Where the appellate court is positioned equally to review the matter, whether labeled one of fact or of law, no deference need be given the trial court:

¶19      … (T)his court is in just as good a position as the circuit court to answer that question.

State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶10      We first examine the trial court’s reliance on the earlier order and its determination that it was “the law of the case.” Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:

The law of the case doctrine is inapplicable.

State v. Quentrell E. Williams, 2006 WI App 212
For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: ¶23, n.5:

 Williams also contends that the evidence was relevant to whether he intentionally caused harm to A.B.A. because intentional child abuse is a specific intent crime. However, Williams was acquitted of intentionally causing harm to a child. Thus, he cannot show that he was prejudiced in his defense as to intentionally causing harm to a child by his attorney’s failure to introduce that evidence.