On Point: 8. Counsel, 6th Am.

State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)

LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.

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State v. Chad W. Kessler, 2019AP524, 6/23/20, District 3 (not recommended for publication); case activity (including briefs)

Kessler went to trial on several counts, the most serious of which was burglary. Five days before trial was to begin, he asked to represent himself with his prior counsel as standby. The court granted the request after a hearing. Kessler represented himself for one day of the trial before giving the reins back to his attorney. Postconviction, he asserts that the court’s colloquy on self-representation was inadequate because it should have delved deeper into mental health concerns. He also claims he was incompetent to represent himself due to auditory hallucinations caused by schizophrenia. The court heard evidence and denied the motion, and Kessler appealed.

State ex rel. Milton Eugene Warren v. Michael Meisner, 2020 WI 55, 6/11/20, reversing and remanding an unpublished order of the court of appeals, 2019AP567; case activity (including briefs)

Seven years ago, the supreme court decided State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146. That opinion contained a couple of erroneous statements about the procedure for raising claims that postconviction counsel was ineffective. Both parties moved for reconsideration of these statements, which the court inexplicably denied more than a year later. Now with this decision, the court unanimously cleans up the misstatements in Starks, and gives the defendant his day in court.

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

State v. Mark J. Bucki, 2020 WI App 43; case activity (including briefs)

[UPDATED POST – Scroll to the bottom for very useful commentary by Chris Zachar. Many thanks to him for sharing his knowledge.]

The headline tells you the only legal proposition you need to take from this soon-to-be-published case: under Daubert, evidence that trained dogs indicated the defendant had been at a particular location, and also that there had once been human remains in other locations, is not subject to a per se rule requiring corroboration before it can be admitted at trial. In a given case, a circuit court could conclude that particular dog-sniff evidence is not sufficiently reliable to come in (with or without corroboration). But Bucki’s argument–that dog-sniff evidence is so inherently unreliable that it necessarily requires corroboration–is rejected. We read the 50-page opinion, so you don’t have to.

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. Tammy Genevieve Hardenburg, 2019AP1399-CR, 5/27/20, District 1; case activity (including briefs)

At Hardenburg’s OWI trial, the court admitted three blood test reports by three different analysts, but only one of them testified. Hardenburg argued that the testifying analyst served as a conduit for the opinions by the other two in violation of the confrontation clause. She claimed trial counsel was ineffective for not (a) trying to prevent the admission of the second and third analysts’ conclusions, and (b) objecting to the first analyst’s testimony about their conclusions. The circuit court denied Hardenburg’s motion without a hearing. The court of appeals reversed:

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

State v. Gary R. Schumacher, 2019AP1261-CR, District 4, 5/7/20, (1-judge opinion, ineligible for publication); case activity (including briefs)

Schumacher was convicted of OWI with a prohibited alcohol content in connection with an accident at 8:45 p.m. His blood was drawn at 10:56 p.m., and tests showed a BAC of .171, well above his legal limit of 0.08. The sole issue on appeal was whether Schumacher’s trial counsel had adequately cross-examined Kristin Drewieck, a chemist with the Wisconsin State Laboratory of Hygiene about her estimates of Schumacher’s BAC at 8:45 p.m.