On Point: D. Ineffective Assistance

State v. Joel Maurice , 2016AP633-CR, 4/18/17, District 1 (unpublished); case activity (including briefs)

Maurice presented 7 issues for review, which the court of appeals rejected with a scant tablespoon of law. This 32-page opinion reads like a summary of trial testimony and is probably not worth your time unless you happen to be working on one of the issues or you want to see how many ways the court of appeals can reformulate the “prejudice” prong of Strickland’s test for ineffective assistance of counsel. First, here is a rundown of the issues:

State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity

The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.

State v. David L. Johnson, 2015AP2605-CR, 4/4/17, District 1 (not recommended for publication); case activity (including briefs)

A jury found Johnson guilty of aggravated battery and false imprisonment but acquitted him of sexual assault and strangulation. The court imposed 2 consecutive 6-year sentences.  Johnson appealed and argued that the postconviction court erred in denying his claim for ineffective assistance of trial counsel without a hearing, imposing a DNA surcharge in violation of the ex post facto clause, and in denying resentencing. 

State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)

Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.

State v. Desmond Anthony Mattis, 2016AP982, 3/28/17, District 3 (one-judge decision; ineligible for publication); case activity (including state’s brief)

Desmond Mattis raises three issues in this appeal of the circuit court’s denial of his Wis. Stat. § 974.06 motion. The court of appeals rejects them seriatim.

State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)

To no avail, Ward challenges two evidentiary rulings the circuit court made at her trial on charges of being party to the crimes of maintaining a drug house and possession of heroin with intent to deliver.

State v. Shaun M. Sanders, 2017 WI App 22, petition for review granted 6/13/17, affirmed, 2018 WI 51; case activity (including briefs)

When Sanders was 19 years old he was charged with committing repeated sexual assaults of H.S. during a time period when he was aged 9 to 12 and H.S. was aged 7 to 9. He asserts the circuit court had neither subject matter jurisdiction nor competency to proceed on those charges because under §§ 938.02(3m), 938.12(1), and 938.183(1)(am) persons who commit criminal acts when they are under the age of 10 are not subject to the juvenile justice code or the criminal code. The court of appeals rejects the claim.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?

State v. Randy Allen Lapp, 2016AP116-CR, 3/7/17, District 1 (not recommended for publication); case activity (including briefs)

Randy Lapp’s ineffective assistance claims are numerous and diverse, and the court of appeals quickly disposes of them. To wit: