On Point blog, page 12 of 31
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State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)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State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)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State v. Julius Lee Sanders, 2014AP2644, 6/6/2017, District 1 (not recommended for publication); case activity (including briefs)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State v. David Earl Harris, Jr., 2016AP548-CR, 5/31/17, District 1 (unpublished); case activity (including briefs)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?
Check out this terrific resource on ineffective assistance of counsel claims!
Former ASPD John Breffeilh just brought a real gem to On Point’s attention. It’s an indexed compilation of hundreds (maybe thousands) of successful ineffective assistance of counsel cases from around the nation. The database runs from 1984 when SCOTUS decided Strickland through the present. It includes Wisconsin cases and covers everything from criminal cases, to sexual predator cases, to involuntary mental commitments.
Skimming this resource can help you (a) avoid missteps and/or (b) find the perfect case to support your client’s ineffective assistance of counsel claim.
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.
Hearing required on whether trial counsel was deficient for failing to call witness
State v. George D. Taylor, 2015AP1325-CR, 4/27/17, District 1/4 (not recommended for publication); case activity (including briefs)
Taylor raises a host of challenges to his felony murder conviction. The court of appeals rejects all of them except one: an ineffective assistance of counsel claim, which the court orders must be assessed at a Machner hearing.
50 shades of prejudice
State v. Joel Maurice , 2016AP633-CR, 4/18/17, District 1 (unpublished); case activity (including briefs)
Maurice presented 7 issues for review, which the court of appeals rejected with a scant tablespoon of law. This 32-page opinion reads like a summary of trial testimony and is probably not worth your time unless you happen to be working on one of the issues or you want to see how many ways the court of appeals can reformulate the “prejudice” prong of Strickland’s test for ineffective assistance of counsel. First, here is a rundown of the issues:
Court of appeals affirms trial court’s “no ineffective assistance of counsel” finding in TPR case
State v. D.W., 2016AP1827, 4/11/17, District 1,(1-judge opinion, ineligible for publication); case activity
The briefs in this TPR case are confidential, so we only know what the court of appeals’ opinion tells us about the case. D.W. apparently alleged ineffective assistance of counsel based upon his trial lawyer’s failure to call witnesses and failure to move to have his son’s (A.W.’s) placement changed to a family member. He also argued that his plea was defective. The court of appeals decision is long on facts, short on law, and essentially rubber stamps the Machner court’s findings without analysis.