On Point blog, page 32 of 71
Court of appeals lowers evidentiary threshold for proving “mental deficiency” under Sec. 940.225(2)(c)
State v. Bernard Ikechukwel Onyeukwu, 2014AP518-CR, 2/26/15, District 4 (not recommended for publication); click here for briefs.
The State charged the defendant with 10 counts of sexual assault, 5 of which required proof that the victim suffered from a mental deficiency and that the defendant knew it. The jury acquitted on 6 counts. Just 2 of the convictions required proof of mental deficiency. They spawned interesting grounds for appeal, but this decision just wasn’t up to the task.
Court of appeals affirms plea though defendant misunderstood appellate rights; trips over law governing plea withdrawal and IAC
State v. Jeromy Miller, 2014AP1246-CR, 2/24/15, District 2 (not recommended for publication); click here for docket and briefs
This decision smells like SCOW bait. Miller pleaded guilty believing that he had the right to appeal the circuit court’s denial of his pre-trial motion to dismiss. Both the court and defense counsel told him so. The State concedes they were wrong. The court of appeals held the error harmless because the motion had no merit. In doing so it bungled case law re plea withdrawal and the “prejudice” prong of an ineffective assistance of counsel claim.
Performance not deficient where counsel promised defendant would testify but didn’t call him
State v. Beal, 2014AP1362, 2/24/15, District 1 (not recommended for publication); click here for briefs and docket
During his opening, defense counsel told the jury that Beal would testify to a version of events that contradicted the State’s version, but then he broke that promise. Beal claimed ineffective assistance of trial counsel. The court of appeals and held that Beal didn’t even deserve a hearing on his claim.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.
Defendant forfeited right to counsel of choice; failed to show deficient performance
State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs
A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.
Termination of dominatrix’s parental rights upheld despite jury instruction error
State . Michelle M., 2014ap1539, District 1; 1/27/15 (one-judge opinion; ineligible for publication); case activity
In this TPR case, a circuit court instructed a jury using the version of WIS JI-Children 346 that allows consideration of whether a mother has exposed her child to a hazardous living environment. The court should have given the prior version, which did not mention this consideration. According to the court of appeals, the jury could consider the point whether the instruction explicitly mentioned it or not.
State v. Shata, 2013AP1437-CR and State v. Ortiz-Mondragon, 2013AP2435-CR, petitions for review granted 12/18/14
Review of two court of appeals decisions (one published, one unpublished) that will be argued together. State v. Shata (case activity) and State v. Ortiz-Mondragon (case activity)
Issue in Shata (composed by On Point)
Whether the defendant, a foreign national, should be permitted to withdraw his guilty plea because his trial counsel failed to provide him with “complete and accurate” information about the deportation consequences of pleading guilty?
Defendant didn’t show his mental illness rendered his guilty plea invalid
State v. Douglas E. Hanson, 2014AP623-CR, District 4, 12/11/14 (1-judge decision; ineligible for publication); case activity
Hanson failed to present sufficient credible evidence that he did not understand the consequences of pleading guilty to second offense OWI.
Plea withdrawal denied despite allegation trial counsel gave erroneous advice
State v. Stephanie M. Przytarski, 2014AP1019-CR, District 1, 11/18/14 (1-judge decision; ineligible for publication); case activity
Przytarski can’t withdraw her plea even if her trial lawyer erroneously told her that she could appeal the trial court’s pretrial order that barred her from introducing certain evidence to defend against charges of interference with child custody.
Court of appeals “sympathizes” with angst of dedicated criminal defense lawyers?!
State v. David M. Carlson, 2014 WI App 124; case activity
Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients. Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.