On Point blog, page 13 of 31
Victim’s list of corrections not exculpatory; DA can file NOA; one appellate judge can deny motion to dismiss
State v. Karl W. Nichols, 2016AP88-CR, 3/20/17, District IV (not recommended for publication); case activity (including briefs)
Nichols was convicted, at trial, of a sexual assault of a four-year-old child; the child did not report the alleged assault to anyone until she was 10 years old. Nichols’s postconviction motion alleged that the state had failed to turn over a list, prepared by the child, of changes she wished to make to statements she made during her first forensic interview. The circuit court found the state had acted in bad faith in withholding the list, vacated Nichols’s conviction, and dismissed the charges with prejudice. The court of appeals now reverses and remands for the circuit court to consider Nichols’s sentence modification claim.
Court of appeals rejects various claims by pro se appellant
State v. Desmond Anthony Mattis, 2016AP982, 3/28/17, District 3 (one-judge decision; ineligible for publication); case activity (including state’s brief)
Desmond Mattis raises three issues in this appeal of the circuit court’s denial of his Wis. Stat. § 974.06 motion. The court of appeals rejects them seriatim.
Trial court’s evidentiary rulings weren’t erroneous
State v. Victoria Ward, 2015AP2638-CR, 3/21/17, District 1 (not recommended for publication); case activity (including briefs)
To no avail, Ward challenges two evidentiary rulings the circuit court made at her trial on charges of being party to the crimes of maintaining a drug house and possession of heroin with intent to deliver.
Adult court had jurisdiction, competency to adjudicate offenses committed before defendant was age 10
State v. Shaun M. Sanders, 2017 WI App 22, petition for review granted 6/13/17, affirmed, 2018 WI 51; case activity (including briefs)
When Sanders was 19 years old he was charged with committing repeated sexual assaults of H.S. during a time period when he was aged 9 to 12 and H.S. was aged 7 to 9. He asserts the circuit court had neither subject matter jurisdiction nor competency to proceed on those charges because under §§ 938.02(3m), 938.12(1), and 938.183(1)(am) persons who commit criminal acts when they are under the age of 10 are not subject to the juvenile justice code or the criminal code. The court of appeals rejects the claim.
Plea withdrawal claims rejected
State v. Erika Lisette Gutierrez, 2014AP1983-CR, 3/7/2017 (not recommended for publication); case activity (including briefs)
Gutierrez pleaded guilty to intentional physical abuse of a trial and had a bench trial on her plea of not guilty by reason of mental disease or defect. She asserts she should be allowed to withdraw her guilty plea because the circuit court didn’t give the full § 971.08(1)(c) immigration warning and because her plea was premised on incorrect advice from her lawyer. The court of appeals disagrees.
Defense win: colloquy inadequate to waive right to physical presence
State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)
Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.
Juror’s glimpse of defendant chained to others wearing jail garb doesn’t warrant new trial
State v. Anthony Colon, 2016AP1071-CR, 2/7/17, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)
Colon was on trial for 2 felonies and 3 misdemeanors. During a break in deliberations, the bailiff happened to be transporting Colon to the court room. Colon was wearing street clothes, but he was chained to other defendants who were wearing orange jail garb. Upon learning that some of Colon’s jurors may have seen him that way, defense counsel asked the judge to question the jury, but he did not move for a mistrial.
Failing to provide defendant with complete information about Huber eligibility wasn’t ineffective
State v. William J. Drake, II, 2016AP724-CR, District 4, 2/2/17 (one-judge decision; ineligible for publication); case activity (including briefs)
It may be that Drake’s lawyer could have done a better job of looking into and advising him about the possibility his Huber privileges would be revoked, but that doesn’t mean counsel was ineffective. Thus, Drake doesn’t get to withdraw his pleas.
Counsel not ineffective in handling impeachment of defendant, defense witness with prior convictions
State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)
McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.
Kentel Myrone Weaver v. Massachusetts, USSC No. 16-240, cert. granted 1/13/2017
Question presented:
Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.