On Point: b. Prejudice not found

State v. Angelina Hansen, 2019AP1105, 7/27/21, District 3 (not recommended for publication); case activity (including briefs)

Hansen’s triplet fourth-graders were in the legal custody of their father; he also had primary physical placement of the children. The family court’s order provided that she was to have “supervised placement only” with certain conditions, for two to four hours per week. One day, Ms. Hansen went to the lunch room of the school the children attended and sat with them while they ate. She said wanted to “hug them and tell them [she] loved them.” The court of appeals now holds that this conduct was an unlawful exercise of “physical placement” over the children, such that Ms. Hansen’s conviction for contempt of the family court order stands.

Douglas County DHHS v. D.B., 2020AP982, District 3, 8/10/21 (one-judge decision; ineligible for publication); case activity

D.B. claims trial counsel at his TPR trial was ineffective for: (1) failing to object to the application to his case of the amended version of the statute governing continuing CHIPS grounds; (2) failing to introduce evidence about additional visits between D.B. and his son; and (3) failing to object to testimony about his son’s negative reactions to him during certain visits. The court of appeals rejects the claims.

State v. David Wayne Ross, 2020AP261, 6/29/21, District 1 (not recommended for publication); case activity (including briefs)

Over a dissent, the court of appeals holds that, even if Ross is right that his trial lawyer performed deficiently in certain respects, Ross’s defense wasn’t prejudiced.

State v. Michael James Brehm, 2020AP266, 6/29/21, District 1 (not recommended for publication); case activity

Brehm was arrested after a neighbor called 911 to report that he was firing a gun out his window into the air. Police recovered a gun and Brehm admitted to the shooting. He eventually pleaded guilty to being a felon in possession of a firearm.

State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)

Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.

State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs)

This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial.

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)

The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.

State v. David Gutierrez, 2020 WI 52, reversing in part a published court of appeals opinion, 6/3/20; case activity (including briefs)

In a 5-0 decision, SCOW affirms all parts of this published court of appeals decision but one. The court of appeals held that the circuit court erred in refusing to admit evidence that excluded Gutierrez as the source of male DNA in the underwear and around the mouth of a victim of child sexual assault. The assaults involved oral sex and attempted vaginal intercourse. SCOW reversed the court of appeals on that point.

State v. Ronald Eugene Provost, 2020 WI App 21; case activity (including briefs)

It’s unclear why this opinion is recommended for publication. Best guess is that is provides a (rather thin) gloss on the “systemic breakdown” exception to the rule that delays attributable to defense counsel don’t weigh in favor of a speedy trial violation. The court cites and adopts a statement from a New Mexico court that defense counsel’s delays represent a “systemic breakdown” only when they are caused by “problems that are both institutional in origin and debilitating in scope.” (¶40). Sounds like a slightly longer way of saying “systemic breakdown,” no?