On Point blog, page 5 of 5
Recusal – Waiver; Guilty Plea – Factual Basis – Sexual Intercourse with Child
State v. Roger D. Godwin, No. 2009AP2999-CR, District 4, 8/5/10
court of appeals decision (1-judge, not for publication); pro se
Recusal – Waiver
¶10 Godwin argues that Judge VanDeHey should have recused himself from the case because one of the judge’s colleagues, Judge Curry, and other courthouse staff were Godwin’s victims in the bomb threat case. The State argues that the judge was not required to recuse under WIS.
Sufficiency of Evidence Review; Reverse Waiver; Sentence – Exercise of Discretion
State v. Carl Morgan, 2009AP74-CR, District III, 7/20/10
court of appeals decision (3-judge, not recommended for publication); for Morgan: Ralph Sczygelski; BiC; Resp.; Reply
Sufficiency of Evidence Review
Review of a denied motion for dismissal at the close of the prosecutor’s case-in-chief is waived where the defendant proceeds to put in a defense. All the evidence, including the defense presentation,
Jury Instructions: Exposing Child to Harmful Materials – Accident Defense – Waiver; Evidence: Richard A.P. – Corroboration Rule; Evidence: Character – Polygraph Offer; Voluntary Statement
State v. Esteban M. Gonzalez, 2010 WI App 104, reversed, 2011 WI 63, see: this post; for Gonzalez: Kristin Anne Hodorowski; BiC; Resp.; Reply
Jury Instructions – Exposing Child to Harmful Materials
The pattern instruction on exposing a child to harmful material, § 948.11(2)(a), accurately recites the elements, including scienter.
¶11 We agree with the trial court’s assessment that the pattern instruction accurately states the law.
Appellate Procedure: State’s Waiver; Exculpatory Evidence: State’s Failure to Preserve
State v. Kyle Lee Huggett, 2010 WI App 69; for Huggett: Craig A. Mastantuono; BiC; Resp; Reply
The State forfeited a potential appellate argument by conceding it in the trial court, in response to Huggett’s postconviction motion, ¶14.
Unmentioned by the court: the State is the appellant. Why does that matter? Because the general rule is that the respondent on appeal may raise any argument,
Bridget A.N. v. Justin E.H., 2010AP13, District II, 3/31/2010
court of appeals decision (1-judge; not for publication)
Appellate Procedure – Contemporaneous Objection Rule
Waiver of issue on appeal where objections lodged at trial “were not specific enough to put the trial court on notice” of the objection posited on appeal; motion for mistrial was not contemporaneous with occurrence of error and therefore “came to late” to be raised on appeal.
Guilty Plea Waiver Rule: Detainer Act Claim
State v. Karon M. Asmus, 2010 WI App 48; for Asmus: Donald C. Dudley
Interstate Detainer Act claim is waived by guilty plea:
¶3 A guilty plea constitutes a waiver of all nonjurisdictional defects and defenses. State v. Kelty, 2006 WI 101, ¶18, 294 Wis. 2d 62, 716 N.W.2d 886. This rule applies even though the defendant attempts to preserve an issue by raising it in the circuit court.
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
State v. Robert L. Duckett, 2010 WI App 44
court of appeals decision; for Duckett: Michael K. Gould, SPD, Milwaukee Appellate; BiC; Resp. Br.; Reply Br.
Guilty Pleas – Breach – Lack of Contemporaneous Objection
Failure to object contemporaneously forfeits right of review of subsequently-asserted plea bargain breach. The issue therefore is reviewable only “in the context of a claim for ineffective assistance of counsel,” ¶6.
The court is fond of making this pronouncement,
Waiver of Appeal — “Partial” No-Merit Report
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:
¶12 We conclude,
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;