On Point blog, page 37 of 55
Appellate Procedure: Waived Objection to Jury Instruction; Inaccuracy in Witness’s Accurate Criminal Record: Harmless Error; Defendant’s Right Not to Testify: Retrospective Hearing – State Satisfied Burden of Proof
State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity
Appellate Procedure – Waiver – Jury Instructions
Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”
Ineffective Assistance of Reconfinement Counsel: Duty to Correct Misleading DOC Summary
State v. Wayne P. Harris, 2012 wI App 79(recommended for publication); for Harris: Attorney Gary Grass; case activity
We know that “[a] defendant has a due process right to be sentenced based on accurate information.” See State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1 But what happens when the sentencing court relies upon a DOC-prepared revocation summary that is “technically true but misleading” or that is “written in a way that that invite[s] the court to draw negative inferences”?
Plea Bargains: Breach by Defendant (Bail-Jumping, Fail Appear at Sentencing) – State No Longer Bound by Terms
State v. Laurence W. Tucker, 2012 WI App 67 (recommended for publication); for Tucker: Robert T. Ruth; case activity
Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement,
TPR – Summary Judgment on Grounds – Ineffective Assistance of Counsel
Michael B. v. Marcy M., 2011AP2846, District 2, 5/16/12
court of appeals decision (1-judge, not for publication); for Marcy M.: Jane S. Earle; case activity
By responding (inadequately) to a TPR motion for summary judgment on grounds with a letter rather than evidence such as an affidavit, counsel provided ineffective assistance.
¶10 We disagree that counsel’s performance was “not ineffective.” In the face of summary judgment that would deprive Marcy of a jury determination on her failure to assume parental responsibility,
Ineffective Assistance – Failure to Impeach
State v. Ralph S. Stewart, 2011AP1424-CR, District 1, 5/15/12
court of appeals decision (not recommended for publication); for Stewart: Byron C. Lichstein; case activity
Counsel’s failure to impeach police officers, with their own reported statements, was deficient:
¶17 While matters of trial strategy are generally left to counsel’s professional judgment, counsel may be found ineffective if the strategy was objectively unreasonable. See State v.
TPR – IAC – Lack of Prejudice
Oneida County Department of Social Services v. Scott H, 2011AP2599, District 3, 5/15/12
court of appeals decision (1-judge, not for publication); for Scott H.: Brian C. Findley; case activity; companion case: Oneida County Department of Social Services v. Amanda H., 2011AP2599
Notwithstanding trial counsel’s concession of no strategic reason for allowing the jury to view documents reciting Scott’s “history of violent behavior,”
TPR – Severance; IAC – Lack of Prejudice; Grounds: Failure to Assume Parental Responsibility – Constitutionality
Oneida County Department of Social Services v. Amanda H, 2011AP2600, District 3, 5/15/12
court of appeals decision (1-judge, not for publication); for Amanda H.: Shelley Fite, SPD, Madison Appellate; case activity; companion case: Oneida County Department of Social Services v. Scott H., 2011AP2599
TPR – Severance
On joint trial for termination of parental rights, Scott’s disruptive conduct didn’t necessitate grant of severance motion by Amanda.
Charge Duplicity – Juror Unanimity
State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12
court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity
Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions:
¶17 To begin, we conclude that the amended information properly notified Benson of the charges against him. The counts were set forth with enough specificity to allow Benson to plead and defend himself and to protect him from being tried twice for the same offense.
Counsel – Challenge to Effectiveness – Machner Hearing
State v. William Martin, 2011AP2168, District 1, 5/8/12
court of appeals decision (not recommended for publication); pro se; case activity; prior history: unpublished decision (2007AP1293-CR)
Because the record conclusively demonstrated that Martin wasn’t entitled to relief, State v. Love, 2005 WI 116, ¶26, 284 Wis. 2d 111, 700 N.W.2d 62, the circuit court properly denied without a hearing his claim that postconviction counsel was ineffective (for failing to argue appellate counsel’s ineffectiveness in several respects).
IAC Claim – Evidence of Flight
State v. Herbert Ambrose Darden, 2011AP883-CR, District 4, 5/3/12
court of appeals decision (not recommended for publication); for Darden: Angela Conrad Kachelski; case activity
Trial counsel correctly construed the holding of State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999):
¶16 This is not the first time that we have been asked to determine whether or not Miller created a bright-line rule that evidence of flight is inadmissible if there is an independent explanation for the flight that cannot be explained to the jury.