On Point blog, page 9 of 22
Court of appeals says conclusory ineffective assistance of counsel claim properly denied without a hearing
Dane County DHS v. N.C., 2017AP788, District 4, 9/21/17, District 4 (1-judge opinion, ineligible for publication); case activity
N.C. filed a postdisposition motion challenging the circuit court’s termination of her parental rights to M.M. She argued, among other things, that her trial lawyer was ineffective in failing to have the termination order entered as voluntary, rather than involuntary.
No prejudice in state’s failure to disclose witness; newly discovered evidence not material
State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)
The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.
Court of appeals rejects bid for new trial based on new evidence, IAC
State v. Matthew Ray Taylor, 2016AP682-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)
Taylor argues he should get a new trial based on newly discovered evidence and ineffective assistance of counsel. The court of appeals rejects his claims.
SCOTUS delves into structural error
Weaver v. Massachusetts, USSC No. 16-240, 2017 WL 2674153 (June 22, 2017); affirming Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016); Scotusblog page (including links to briefs and commentary)
Members of the public–specifically, Kentel Weaver’s family–were excluded from the overcrowded courtroom during jury selection for his trial. Violations of the Sixth Amendment right to public trial have been called structural errors not susceptible to harmless error analysis. But Weaver’s lawyer didn’t object, so this is an ineffective assistance claim, which of course requires him to show prejudice. But how do you show that you were prejudiced by a structural error–after all, the term refers to an error whose “effect … cannot be ascertained”? United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006).
Counsel deficient in allowing jury to see exhibit, but defense prejudiced on just 1 of 5 counts
State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)
Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault. At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.
Court of appeals rejects numerous challenges to homicide conviction
State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)
A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.
No relief in TPR
Taylor County DHHS v. S.A.L., 2016AP2369, 6/7/17, District 3 (one-judge decision; ineligible for publication); case activity
S.A.L. appeals the termination of her parental rights to her two children. She alleges ineffective assistance of her trial counsel and that the court failed to properly exercise discretion during the dispositional phase. The court of appeals affirms.
Failure to tell defendant he might get different judge not ineffective
State v. Julius Lee Sanders, 2014AP2644, 6/6/2017, District 1 (not recommended for publication); case activity (including briefs)
Julius Sanders appeals from his judgment of conviction and the denial, without a hearing, of his postconviction motion.
Defense win! Defense counsel’s failure to object warranted new trial
State v. David Earl Harris, Jr., 2016AP548-CR, 5/31/17, District 1 (unpublished); case activity (including briefs)
The state charged Harris with heinous conduct giving rise to false imprisonment, sexual assault, and strangulation charges. At trial, the DA introduced a copy of a TRO that pre-dated the criminal complaint but mirrored the facts that it alleged. Defense counsel didn’t mind letting the jury see the TRO because she thought it showed that the TRO allegations were false. But she didn’t notice the part of the TRO where the court commissioner found reasonable grounds to believe that Harris had committed all heinous conduct described in the TRO. Uh oh. Guess what happened?
Court of Appeals reverses circuit court’s finding that trial counsel was ineffective
State v. Anthony R. Pico, 2015AP1799-CR, 5/10/17, District 2 (not recommended for publication), petition for review granted 10/10/17, affirmed, 2018 WI 66; case activity (including briefs)
The circuit court granted Pico a new trial on a charge of first degree child sexual assault after concluding Pico’s trial lawyer was ineffective on various grounds. Over a dissent, the court of appeals reverses and reinstates Pico’s conviction.