On Point: b. Not found

State v. Robert C. Washington, 2018AP1771-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)

Washington was convicted of first degree reckless homicide and first degree reckless injury for shooting his two sons, killing one and injuring the other. He argues his lawyer was ineffective for advising him to plead without discussing possible lesser included offense possibilities and for failing to advocate for him at sentencing. He also argues newly discovered evidence shows the shootings were accidental, not reckless.

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)

Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.

State v. Robert Brian Spencer, 2017AP1722-CR, 4/16/19, District 1 (not recommended for publication); case activity (including briefs)

Spencer raised many issues on appeal: insufficient evidence to support his conviction, multiple ineffective assistance of counsel claims, and a Brady violation. This post focuses on the 2 most interesting claims: ineffective assistance for failure to move to suppress evidence obtain via a no-knock warrant and the DA’s failure to turn over evidence of an officer’s disciplinary history.

State v. Edward L. Branson, 2018AP873-CR, 3/21/19, District 4 (not recommended for publication); case activity (including briefs)

Branson was convicted of possession with intent to deliver methamphetamine. He argued that his lawyer was ineffective for failing to object to an officer’s testimony comparing his behavior to that of the passenger in his car where a bag of meth was found. The officer described the passenger as calm, helpful and willing to look him in the eye. In contrast, he described Branson as nervous and failing to make eye contact.

State v. Harvey A. Talley, 2018AP786-CR, 2018AP787-CR, & 2018AP788-CR, District 1, 3/19/19 (not recommended for publication); case activity (including briefs)

Talley, who was convicted of first degree sexual assault causing pregnancy in violation of § 940.225(1)(a), argues trial counsel was ineffective for failing to elicit testimony from A.D., the complainant, the reasons why she initially falsely alleged Talley had forcible, nonconsensual sex with her. The court of appeals holds trial counsel’s strategy in questioning A.D. was reasonable.

State v. Rondale Darmon Tenner, 2018AP1115-CR, District 1, 3/12/19 (not recommended for publication); case activity (including briefs)

Tenner complains his lawyer was ineffective for failing to impeach one of the state’s witnesses with her prior convictions. He also says he should get a new trial because he has an affidavit from a new witness who says another state’s witness actually committed the crime pinned on Tenner. The court of appeals disagrees.

State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)

On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.

State v. Samantha H. Savage-Filo, 2018AP996-CR, 1/9/19, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs).

Savage-Filo claimed that her trial counsel was ineffective for, among other things, failing to investigate electronic discovery and incorrectly assessing the strength of a video allegedly showing her take a purse (filled with jewelry) left in a cart at a store parking lot. S-F argues that the appalling quality of the video shows that the State had little evidence against her. Her trial counsel failed to appreciate this and pushed her to plead.

State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)

“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.