On Point blog, page 18 of 22
Ineffective assistance of counsel; “new factor” based sentence modification
State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).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.
Confession – consideration of truthfulness of confession when deciding voluntariness
State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity
The circuit court properly denied the defendant’s Wis. Stat. § 974.06 postconviction motion, which claimed that his trial lawyer was ineffective for not objecting to references to the truthfulness of his confession during a Goodchild hearing to determine voluntariness of the confession and that his postconviction lawyer was ineffective for failing to challenge his trial lawyer’s effectiveness.
Ineffective assistance of counsel – failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist; failure to object to evidence of prior felony convictions
State v. Willie M. McDougle, 2013 WI App 43; case activity
Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist
Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:
¶17 …[T]rial counsel’s decision not to object to Dr.
Plea-Withdrawal – Ineffective Assistance – Ch. 980-Eligibility
State v. Travis J. Guttu, 2012AP129-CR, District 3/4, 11/28/12
court of appeals decision (not recommended for publication); case activity
After entering guilty pleas to multiple counts, Guttu unsuccessfully sought presentencing plea-withdrawal. After sentencing, he sought to withdraw the pleas on different grounds, more particularly: counsel was ineffective for failing to assert Guttu’s lack of knowledge that his plea to one of the counts (sexual assault) subjected him to potential SVP commitment under ch.
TPR – Right to Meaningful Participation – Lack of Objection
Veronica K. v. Michael K., 2012AP197, District 1, 10/10/12
court of appeals decision (1-judge, ineligible for publication); case activity
Michael K., incarcerated at the time of this TPR trial, appeared by audio-video hookup. He argues that his due process right to meaningful participation, State v. Lavelle W., 2005 WI App 266, ¶2, 288 Wis. 2d 504, 708 N.W.2d 698, in light of his numerous contemporaneous complaints he couldn’t hear the proceedings.
Self-Representation
State v. Anthony S. Irving, 2011AP1908-CR, District 2, 8/8/12
court of appeals decision (not recommended for publication); case activity
A defendant has a constitutional right to self-representation, State v. Imani, 2010 WI 66, ¶20, 326 Wis. 2d 179, 786 N.W.2d 40, but it must be triggered by a “clear and unequivocal” request for self-representation, State v. Darby,
Search & Seizure: Consent to Blood Draw – Test for Seizure of Person; Ineffective Assistance: Unobjected-to Evidence of Victim’s Character – No Prejduice
State v. Jason M. Jacobs, 2012 WI App 104 (recommended for publication); case activity
Search & Seizure – Consent – Blood Draw
Following a fatal traffic accident, Jacobs performed field sobriety tests well enough that he wasn’t placed under arrest, but he was asked to submit to a blood draw. Jacobs called his attorney, who advised him not to consent to the draw, but Jacobs nonetheless agreed to go to the hospital with an officer to have a blood test.
TPR – Federal / Wisconsin Indian Child Welfare Act
Jackson Co. DHS v. Robert H., 2011AP2783, District 4, 7/17/12
court of appeals decision (1-judge, ineligible for publication); case activity
Both federal and state Indian Child Welfare Acts require that termination of parental rights to an Indian child be supported by testimony of a qualified expert witness “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” 25 U.S.C.
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”
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,”