On Point blog, page 19 of 22
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court of appeals decision (1-judge, not for publication); for Scott H.: Brian C. Findley; case activity; companion case: Oneida County Department of Social Services v. Amanda H., 2011AP2599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,”
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court of appeals decision (1-judge, not for publication); for Amanda H.: Shelley Fite, SPD, Madison Appellate; case activity; companion case: Oneida County Department of Social Services v. Scott H., 2011AP2599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court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity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).
Stun Belt – “Standing Order”
State v. Allen K. Umentum, 2011AP2622-CR. District 3, 5/1/12
court of appeals decision (1-judge, not for publication); for Umentum: Roberta A. Heckes; case activity
Under a local, Brown County “standing order,” all in-custody defendants appearing at jury trial were required, without particularized demonstration of need, to wear a non-visible stun belt. The courthouse had no screening checkpoints, and any defendant was entitled to relief from the order “for good cause shown.”
Ineffective Assistance – Sentencing; Failure to Request Substitution
State v. Miller X. Lark-Holland, 2011AP791-CR, District 1, 2/28/12
court of appeals decision (not recommended for publication); for Lark-Holland: Byron C. Lichstein; case activity
¶7 Lark-Holland’s first complaint is that his trial lawyer did not emphasize the mitigating factor that he said he was forced into committing the robbery, and also made several comments that he says undercut his character. … These comments, however, when read in full context,
Ineffective Assistance – Prejudice; Trial Court Exercise of Discretion – Over-Reliance on Party’s Submission
State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12
court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity
Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.
¶8 Wisconsin law recognizes that guns and drug dealers go together. See State v. Guy, 172 Wis. 2d 86,
TPR – Jury Instructions: Waiver of Issue; Ineffective Assistance
Heather T. C. v. Donald M. H., 2010AP467, District 2, 2/1/12
court of appeals decision (1-judge, not for publication); for Donald: Thomas K. Voss; case activity
Failure to object at trial waived appellate challenge to jury instructions and verdict form that combined two separate periods of abandonment as grounds for termination.
¶6 Failure to object to proposed jury instructions or verdicts at the instruction and verdict conference constitutes waiver of any error in the instructions or verdicts.