On Point blog, page 7 of 7
Counsel – Right to – Defendant Must Cooperate With SPD 1st
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶27 We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case,
Counsel – Right to – Review of SPD Denial of Representation, § 977.06(4)
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding1:
¶11 Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis. 2d at 511.
Right to Change of Counsel – Inability to Communicate Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13 Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),
Waiver (of Appellate Counsel) — By Conduct
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.
Right to Counsel – Change of Counsel
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168, 266 Wis. 2d 599, 669 N.W.2d 204
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL
Issue/Holding:
¶66. The final issue we consider is whether the circuit court erred in failing to permit McDowell new counsel.
Counsel — Waiver — Necessity for Evidentiary Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding:
¶15. When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the trial court’s judgment, the court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent and voluntary….¶16.
Defendant’s Presence at Postconviction Hearing
State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.
Right to Counsel – Inherent Judicial Authority to Appoint – Indigency Determination – Use of Federal Poverty Guidelines
State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913
Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.
Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing,
Right to Counsel – Judicial Appointment, Discretion to Continue on Appeal
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant; James L. Boardman; Chris R. Velnetske
Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal.
Holding: Judicial appointment of counsel in a CHIPS case doesn’t automatically terminate upon disposition, the circuit court retaining authority to continue the appointment for purposes of appeal.
Right to Counsel – Judicial Appointment – Continuation on Appeal
In re Paternity of Roberta Jo W.: Roberta Jo W. v. Leroy W., 218 Wis.2d 225, 578 N.W.2d 185 (1998), on certification.
Holding:
The second issue is whether the circuit court erred in terminating court-appointed counsel upon the filing of a notice of appeal. We hold that after a notice of appeal was filed, the case was within the jurisdiction of the court of appeals,