On Point: D. Ineffective Assistance

State v. D.C., 2016AP2229-2230, District 1, 11/30/17 (1-judge opinion, ineligible for publication); case activity

During the grounds phase of her TPR proceeding, D.C.’s lawyer asked the trial court to: (1) instruct the jury that she was prohibited from having visitation with her children for a period of time, and (2) give curative instructions that it was impossible for her to perform a condition for return of her kids and to assume parental responsibility due to her incarceration.  The court planned to rule on these requests just before trial, but, oops, that did not happen.

At least three justices of the Supreme Court of the United states think so. 

State v. Micah Nathaniel Reno, 2016AP1371-CR, District 1 (not recommended for publication); case activity (including briefs)

Reno’s trial lawyer wanted to call A.A. as a witness at trial. But A.A. had a pending case and A.A.’s lawyer told Reno’s lawyer not to talk to her. Thinking he was barred by the ethics rules from talking to a represented person, Reno’s lawyer didn’t attempt to talk to A.A. or call her as a witness. Trial counsel was ineffective because he was not attempting to talk to A.A. about the subject matter of her case, but only about the subject matter of Reno’s case, and therefore counsel wasn’t barred under the rules of ethics from trying to talk to or call A.A. as a witness.

State v. Gary Lee Wayerski, 2015AP1083-CR, District 3, 10/31/17 (not recommended for publication), petition for review granted 3/13/18, and modified, and afford as modified, 2019 WI 11; case activity (including briefs)

Rejecting Wayerski’s argument to the contrary, the court of appeals holds that a police officer alleged to have sexually assaulted two teenage boys could be convicted under § 948.095(3)(a), which prohibits a person over age 21 “who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children” from having sexual contact or sexual intercourse with a child “whom the person works or interacts through that occupation or volunteer position.” The court also rejects the challenges Wayerski makes to the conduct of his trial.

State v. Eric L. Moore, 2016AP1292-CR, District 1, 10/31/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Moore’s right to confrontation wasn’t violated by the admission of the recording of a 911 call about an incident in which Moore was alleged to have committed battery against A.J. Nor was Moore’s lawyer ineffective for deciding not to elicit information that A.J. later recanted that allegation of battery.

State v. Lamont Donnell Sholar, 2016AP987, petition for review granted 10/17/17; case activity (including briefs)

Issues (composed by On Point)

1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?

2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?

State v. Jeffrey S. Roehling, 2016AP35-CR, District 3, 10/3/17, (not recommended for publication), case activity (including briefs)

Haven’t seen defense win in awhile–especially not regarding postconviction procedure. The court of appeals first rejects the State’s contention that a defendant who fails to request an extension of the 60-day deadline for a circuit court to decide a postconviction motion forfeits his grounds for challenging the decision. Next it holds that Roehling’s posctconviction motion alleged facts sufficient to warrant a hearing on his ineffective assistance of counsel claim. That makes this decision a “win win.”

McCoy v. Louisiana, USSC No. 16-8255, cert granted 9/28/17

Question presented:

Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?

Dane County DHS v. N.C., 2017AP788, District 4, 9/21/17, District 4 (1-judge opinion, ineligible for publication); case activity

N.C. filed a postdisposition motion challenging the circuit court’s termination of her parental rights to M.M. She argued, among other things, that her trial lawyer was ineffective in failing to have the termination order entered as voluntary, rather than involuntary.