On Point: D. Ineffective Assistance

State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro

Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.

Holding:

¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.

State ex rel. Luis Santana v. Endicott, 2006 WI App 13

Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):

¶1        … Although Santana may seek habeas relief on his ineffective assistance claim,

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06

For Demmerly: Edward J. Hunt

Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter,

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
Milanes: Joan M. Boyd

Issue/Holding: Counsel’s failure to litigate a (Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.

State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding

Issue/Holding:

¶50      Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense.

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd

Issue/Holding: Failure to pursue an NGI defense wasn’t deficient:

¶19      … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail,

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:

¶12 We conclude,

State v. David J. Roberson, 2005 WI App 195
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶11      A circuit court acts within its discretion in denying without a Machnerhearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations;

State v. Jeannie M.P., 2005 WI App 183
For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate

Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, counsel’s failure to bring out that evidence at trial was deficient,