On Point: 1. Deficient performance

State v. A.W., 2016AP121 through 125, 12/8/16, District 1 (1-judge opinion; ineligible for publication); case activity

When A.W. did not appear for her pretrial and was not reachable by phone, the court entered a default finding as to grounds for a TPR. She moved to vacate that finding, but then withdrew her motion. On appeal, she argued that (1) trial counsel was ineffective for advising her to withdraw the motion to vacate, and (2) the circuit court should have vacated the default so that she could address false information admitted in her case. The court of appeals refused to address the 2nd argument for reasons that penalized A.W. for mistakes her appellate lawyer allegedly made.

State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)

Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.

State v. Thomas D. Dowling, 2016AP838-CR, 10/26/16, District II (one-judge; ineligible for publication); case activity (including briefs)

This is an ineffective assistance claim against Dowling’s trial counsel for not moving to suppress evidence obtained after Dowling told police officers–whom his wife had allowed into their apartment–to leave.

William Hinesley, III, v. Wendy Knight, 7th Circuit Court of Appeals No. 15-2122, 2016 WL 4758437, 9/13/16

Hinesley’s trial lawyer didn’t object to the state’s presentation of the inculpatory out-of-court statements of the two principal witnesses against him because he wanted all of the witnesses’ statements admitted to show how they had changed their stories and weren’t credible. The Seventh Circuit holds the state courts reasonably concluded trial counsel wasn’t ineffective for adopting and employing this strategy.

State v. Anthony Darnell Davis, 2016 WI App 73; case activity (including briefs)

Davis argued that he could not be convicted of recklessly causing “great bodily harm” to a child where the injuries he inflicted were bone fractures which, by statute, qualify as only “substantial bodily harm.” See Wis. Stat. § 939.22(38). The court of appeals disagreed.

State v. Joe Bonds Turney, 2015AP1651-CR & 2015AP1652-CR, District 1, 8/30/16 (not recommended for publication); case activity (including briefs)

Turney claims the trial court erred in permitting joinder of two cases for trial and in denying his motion for substitution of judge following his arraignment. He also argues he is entitled to an evidentiary hearing on his ineffective assistance of counsel claim, which was based on trial counsel’s failure to object to a witness’s reference to his post-arrest silence. The court of appeals rejects his claims.

State v. Ginger M. Breitzman, 2015AP1610-CR, District 1, 8/16/16 (not recommended for publication), petition for review granted 3/13/2017; case activity (including briefs)

The court of appeals rebuffs Breitzman’s arguments that there was insufficient evidence to convict her of child neglect and disorderly conduct and that her trial lawyer was ineffective.

State v. Mychael R. Hatcher, 2015AP297-CR, District 3, 8/16/16 (not recommended for publication); case activity (including briefs)

Hatcher was convicted of sexually assaulting an intoxicated person, obstructing an officer, and bail-jumping. This 38-page court of appeals decision rejects claims that the trial court erred in refusing to accept Hatcher’s guilty plea, admitting expert testimony during the State’s rebuttal, admitting evidence of the victim’s flirting, and ineffective assistance of counsel for failure to move for suppression and for introducing into evidence a report showing the victim’s BAC.

State v. William J. Thurber, 2015AP161-CR, 7/27/16, District 2 (not recommended for publication); case activity (including briefs)

“Was Thurber’s trial a game being played or was it a trial designed to search for the truth? Thurber is certainly no angel as evidenced by his current long-term incarceration for crimes apart from this case. I believe the justice system best defines itself by scrupulously adhering to high standards when the worst of the worst comes before it. We travel a slippery slope when we excuse mistakes by the judiciary, the State, and defense counsel because we ‘know’ the defendant is a criminal.” Slip op. ¶91. (Reilly, J. dissenting).

State v. David L. Vickers, 2015AP1631-CR, 6/22/16, District 2 (not recommended for publication); case activity, including briefs

Vickers, who was convicted of misdemeanor bail jumping and retail theft of a wireless router, filed a §974.06 motion claiming ineffective assistance of counsel because his trial lawyer failed to move for suppression of stolen property found in his car and failed to investigate or call as a witness a co-defendant who later confessed to the theft. The court of appeals here affirms the convcition.