On Point: 1. Deficient performance

State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault

At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).

Amy W. v. David G., 2013 WI App 83; case activity

David G.’s parental rights were terminated in a proceeding commenced by the child’s mother. He filed a timely notice of intent to pursue postdisposition relief, but his appointed appellate counsel failed to file a notice of appeal before the deadline. (¶3). That deadline cannot be extended because the legislature has decreed that the time for filing an appeal in a TPR case may not be enlarged when the petition was filed by someone other than “a representative of the public.”

State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:

• Failing to introduce C.A.’s attendance records: C.A.

State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel

In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13);

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident,

State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel — failure to present evidence, ineffective cross examination

In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses.

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,

State v. Gloria C., 2012AP1693 and 2012AP1694, District 1, 2/5/13; court of appeals decision (1-judge, ineligible for publication); case activity

Trial counsel was not ineffective for failing to object to the opinion testimony of the parent’s ongoing case manager, who said that based on the parent’s conduct in the preceding two years, she would not be able to meet the conditions necessary for the return of her children within nine months.

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.  

Questions Presented:

This case presents three questions involving· AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), this Court’s recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers:

1. Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence.