On Point blog, page 12 of 49
COA rejects multiple challenges to first-offense OWI and refusal convictions and affirms
City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)
Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.
COA skirts A.G. claim in TPR appeal based on its reading of the record, applies usual deference to circuit court’s termination order
State v. B.W., 2022AP1329, District I, 9/12/23, PFR granted 12/11/23; affirmed 6/27/2024; (1-judge decision; ineligible for publication); case activity (briefs not available)
In yet another TPR appeal presenting an alleged miscommunication of the dispositional burden of proof, COA’s close read of the record evidence prevents B.W. from obtaining a requested hearing.
COA: Lying to police investigating claimed restraining order violation is sufficient evidence of obstructing
State v. Jeffrey S. Clemons, 2020AP1450-CR, 9/6/23, District III (one-judge decision; ineligible for publication); case activity (briefs not available).
Applying an almost-insurmountable standard of review, COA concludes there was sufficient evidence to support the circuit court’s finding that Clemons violated an obstructing ordinance.
COA rejects challenges to OWI refusal
State v. Michael A. Wilson, 2022AP1099, District IV, 8/31/23, 1-judge decision ineligible for publication; case activity (briefs not available)
Despite some procedural quirks, the Court of Appeals wastes no time in affirming what turns out to be a relatively straightforward refusal conviction.
COA disregards business as usual and reverses default judgment in Milwaukee County TPR
State v. C.D., 2023AP1025, District I, 8/29/23, 1-judge decision ineligible for publication; case activity (briefs not available)
In an exciting defense win, District I signals a willingness to critically review default orders entered in Milwaukee County.
7th Circuit denies habeas relief to Wisconsin prisoner despite being “deeply troubled by the performance of defense counsel;” addresses impact of no-merit petition for review as to alleged procedural default
Tyler A. Gonzales v. Cheryl Eplett, No. 22-2393, 8/9/23 (Available on Westlaw as 2023 WL 5086451)
In a case demonstrating the full power of AEDPA’s stringent standard of review, the 7th Circuit is powerless to grant a new trial despite its palpable discomfort when evaluating the performance of defense counsel.
Circuit court reasonably exercised its discretion in ordering default judgment; terminating parent’s rights
State of Wisconsin v. M.S.H., 2023AP692, District I, 8/1/23, 1-judge decision ineligible for publication; case activity (briefs not available)
A parent’s non-cooperation with an involuntary TPR leads to a default judgment and, despite some compelling arguments, COA rejects her invitation to reweigh the dispositional evidence and reverse the order terminating her parental rights.
SCOW: Threat to add new charges during trial didn’t bar the filing of those charges after mistrial
State v. James P. Killian, 2023 WI 52, 06/21/23, reversing a published court of appeals decision; case activity (including briefs)
The state’s threat to add new charges against Killian during a trial that ended in a mistrial didn’t expand the scope of the protection against double jeopardy to those new charges.
SCOW reaffirms that trial counsel’s strategic decisions are given deference only if they are reasonable
State v. Jovan T. Mull, 2023 WI 26, 4/4/23, reversing a per curiam decision of the court of appeals; case activity (including briefs)
The supreme court rejects Mull’s claims that his trial lawyer was ineffective at his trial, though it reaffirms that trial counsel’s strategic decisions are not given automatic deference, but are judged for their objective reasonableness under all the circumstances.
Purported lack of prejudice dooms constitutional speedy trial claim
State v. Ned Guerra, 2022AP2098-CR, 7/19/23, District 2 (1-judge decision; not eligible for publication); case activity (including briefs)
Twenty-0ne months passed between the filing of the criminal complaint and Guerra’s trial. The delay was caused by a state’s witness’ temporary unavailability and the circuit court’s COVID-based backlog of higher-priority trials. While Guerra clearly asserted his right to a speedy trial, the court affirms the circuit court’s denial of Guerra’s motion to dismiss because “there is no evidence that Guerra was prejudiced by the delay.” Opinion, ¶23.