On Point blog, page 12 of 71
SCOW: Defendants at 2nd grade level, abandoned by counsel, must research and apply law pro se
State ex rel. Wren v. Richardson, 2017AP880-W, 2019 WI 110, affirming a court of appeals unpublished memorandum opinion; case activity (including briefs)
Two weeks ago, we posted “SCOW holds defendants abandoned by counsel to same standards as licensed lawyers,” calling State v. Pope “the most absurd decision this term (still time for worse).” Behold an even more absurd decision: even teenagers who read at 2nd grade level are held to the same standard as licensed lawyers. And, sadly, there’s still time for worse.
Defense win – defendant gets evidentiary hearing on IAC and newly-discovered evidence claims
State v. Antonio L. Bell, 2018AP1593 & 1594, 12/27/19, District 1 (not recommended for publication); case activity (including briefs)
Bell pleaded to two sexual assaults: one of his 9-year-old daughter and one of his 14-year-old stepdaughter. He maintained his innocence but insisted that he would plead to spare them from testifying. After sentencing, he filed postconviction motions alleging his counsel didn’t sufficiently investigate the possibility that the 14-year-old’s boyfriend was the actual perpetrator, and also that there was newly-discovered evidence in the form of a more detailed recantation by the 9-year-old: she now also said it was the boyfriend who’d assaulted her. The circuit court denied both without a hearing, but the court of appeals now says Bell should have a chance to prove his claims.
Defense counsel wasn’t ineffective for recommending an impossible sentencing disposition
State v. Toby J. Vandenberg, 2018AP1810-CR, District 3, 12/23/19 (not recommended for publication); case activity (including briefs)
Vandenberg pled no contest to OWI 7th. The state agreed to cap its sentencing recommendation at four years of confinement and four years of extended supervision. At sentencing Vandenberg’s lawyer, while saying there was “a strong argument there’s a mandatory minimum of three years’ incarceration,” nonetheless argued for probation. (¶¶6-11). Was counsel ineffective for making that argument? Nope.
Court of appeals infers juror’s impartiality from silence in response to question
State v. N.M.A.-S., 2018AP2308-09, 12/17/19, District 1 (1-judge opinion, ineligible for publication); case activity
This TPR case involves a mom with a substance abuse problem and her daughter who had ingested morphine. At the trial on grounds, defense counsel asked the jury pool: “Is there anyone that believes that someone who is struggling with an addiction currently is not fit to parent their children?”
SCOW will decide if cops can tow, search a legally parked car after giving ticket
State v. Alfonso Lorenzo Brooks, 2018AP1774, review of a per curiam decision granted 12/10/2019; reversed 6/25/20; case activity (including briefs)
Issue presented:
Whether the community caretaker exception permits law enforcement to inventory and tow a vehicle after discovering that the driver does not have a valid license, when the vehicle is lawfully parked and not obstructing traffic?
COA: No Machner hearing on trial counsel’s misstatement of DA’s plea offer
State v. Jonathan A. Ortiz-Rodriguez, 2018AP2401-CR, District 1, 11/26/19, (not recommended for publication); case activity (including briefs)
The State charged the defendant with repeated sexual assault of a child, which carries a 25-year minimum term of initial confinement. Trial counsel told the defendant that the State had offered to recommend 5 to 8 years if he would plead to one count of child sexual assault. But then at sentencing the State argued for 20 years IC and 20 years ES.
Putting Strickland’s “ineffective assistance of counsel” test in its place
Appellate lawyers, this one’s for you! According to a new article in Stanford Law Review, there are 4 types of ineffective assistance of counsel claims, and Strickland‘s two-part test applies to only one (that’s right one) of them. Read this article and help our courts put Strickland in its proper place.
COA: no right to defend property by pointing gun at woman who came to settle a bill
State v. Scott A. Walker, 2019AP1138, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)
A jury found Walker guilty of intentionally pointing a firearm at a person contrary to Wis. Stat. § 941.20(1)(c). He claims his trial lawyer was ineffective for failing to raise a defense under Wis. Stat. §§ 939.45(2) and 939.49(1), which provide a privilege “to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property.” The court of appeals has some doubt that Walker adequately raised this claim at the Machner hearing, ¶¶6-7, but decides it anyway on the merits, holding there was no prejudice because the facts couldn’t possibly make out the defense.
A stitch in time saves nine
State v. Marcus Demond Anderson, Sr., 2018AP2016-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)
At the start of his sentencing hearing Anderson lodged a complaint against his lawyer, which the judge blithely ignored. (¶¶2-4). Do over, says the court of appeals.
Ineffective assistance, newly discovered evidence claims fail
State v. Robert C. Washington, 2018AP1771-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)
Washington was convicted of first degree reckless homicide and first degree reckless injury for shooting his two sons, killing one and injuring the other. He argues his lawyer was ineffective for advising him to plead without discussing possible lesser included offense possibilities and for failing to advocate for him at sentencing. He also argues newly discovered evidence shows the shootings were accidental, not reckless.