On Point: 8. Counsel, 6th Am.

State v. Quaid Q. Belk, 2019AP982-CR, District 1, 4/21/20 (not recommended for publication); case activity (including briefs)

Belk moved for a new trial based on multiple allegations of ineffective assistance of trial counsel. The circuit court denied the motion without a hearing, but the court of appeals sends the case back for a hearing on one of the claims.

State v. Richard A. Boie, 2019AP520, 3/5/20, District 4 (not recommended for publication); case activity (including briefs)

Boie appeals his jury-trial conviction for repeated sexual assault of the same child and the denial of his postconviction motion. He raises issues arising from the videotaped interview of his accuser, admitted under Wis. Stat. § 908.08. On the video, the then-six-year-old described assaults occurring when she was four and five years old. At trial, though, the now-nine-year old testified she couldn’t remember some of the things she spoke about in the video. Boie argues the statutory guidelines for admission weren’t met, and separately that his lawyer was ineffective for not moving for mistrial once the memory problems became clear.

State v. Ryan C. Diehl, 2020 WI App 16; case activity (including briefs)

At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.

Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity

N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless. 

State v. Jacqueline A. Ziriax Anderson, 2018AP2410-CR, District 3, 2/11/20 (one-judge decision; ineligible for publication); case activity (including briefs)

The state offered Anderson a deal: plead to OWI 2nd and it would recommend the minimum mandatory penalties. The state made that offer because the arresting officer had resigned from the department due to some “mental health issues” and the prosecutor apparently wasn’t eager to call him as a witness. Anderson’s lawyer found this out immediately before Anderson entered her plea—but didn’t tell Anderson. She learned about it afterward. (¶¶3-4, 8-11). While trial counsel performed deficiently by failing to tell Anderson that information before she pled, that doesn’t entitle her to plea withdrawal because she fails to show she would have insisted on going to trial if trial counsel would have told her, as required by State v. Bentley, 201 Wis. 2d 303, 312, 548 N.W.2d 50 (1996).

State v. Carrie E. Counihan, 2020 WI 12, 2/13/20 modifying and affirming an unpublished court of appeals decision, 2017AP2265; case activity (including briefs)

This case is the companion to State v. Coffee, which, though argued on the same day, came out a few weeks earlier and failed, in particularly confusing fashion, to announce any binding rule. This case does make a rule:

We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at he sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.

(¶4).

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. George E. Savage, 2019AP90-CR, District 1, 1/22/20 (not recommended for publication), petition for review granted, 5/19/20; case activity (including briefs)

Savage pleaded guilty to violating the sex offender registry statute for not providing updated information about where he was residing. He moved to withdraw his plea, asserting his trial lawyer was ineffective for failing to advise him he had a defense to the charge under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787. The circuit court rejected the claim based on an erroneous understanding of Dinkins, so it has to reassess Savage’s claim.

Kenosha County DHS v. M.M.B., 2019AP1776 & 1777, 1/22/20, District 2 (one judge decision; ineligible for publication); case activity

M.M.B. is the father of two children, each of whom has a serious genetic disorder that threatens normal brain growth and function. The disorder can’t be cured but it can be controlled by adherence to a ketogenic diet. Both children were adjudicated CHIPS due to M.M.B.’s asserted inability to provide for their special needs; he allegedly does not believe that they have the disorder and does not comprehend the recommended diet. He also, per the county, doesn’t respond to their emotional needs in appropriate ways.

State v. A.M., 2019AP475-476, District 1, 1/3/20, (1-judge opinion, ineligible for publication); case activity

This is A.M.’s pro se appeal from an order terminating her parental rights to her two children. The briefs are confidential, and the court of appeals states that it had difficulty discerning her arguments.  She appears to have argued that she received ineffective assistance of counsel and that the circuit court erred in determining the best interests of her children.