On Point: 8. Counsel, 6th Am.

 State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks

On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.

State v. Roy H. Beals, 2012AP1079-CR, District 2/1, 7/9/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel

Trial counsel in a sexual assault prosecution was not ineffective for failing to object to portions of two different video statements of the child victim (one from 2007, the other from 2009) because the evidence did not prejudice Beals. Trial counsel did object to the first 10 minutes of the 2007 video until after it had been played,

State v. Robert T. Warriner, 2012AP244-CR, District 2/1, 7/2/13; court of appeals decision (not recommended for publication); case activity

Instruction on first degree child sexual assault as lesser-included of repeated child sexual assault

At trial the child testified that Warriner sexually assaulted her on only two occasions, so the trial court agreed, over Warriner’s objections, to read the instruction for first-degree sexual assault of a child, § 948.02(1).

State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).

What a challenging case.  A jury convicted Jordan of first-degree reckless homicide and other crimes.  He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel,

Amy W. v. David G., 2013 WI App 83; case activity

David G.’s parental rights were terminated in a proceeding commenced by the child’s mother. He filed a timely notice of intent to pursue postdisposition relief, but his appointed appellate counsel failed to file a notice of appeal before the deadline. (¶3). That deadline cannot be extended because the legislature has decreed that the time for filing an appeal in a TPR case may not be enlarged when the petition was filed by someone other than “a representative of the public.”

State v. Ronell Howlett, 2012AP1672-CR, District 1, 5/14/13; court of appeals decision (not recommended for publication); case activity

Howlett, a school bus driver, was convicted of three counts of sexual assault of C.A., a nine-year-old child he was responsible for driving. (¶¶1-3, 7). Adopting significant portions of the trial court’s postconviction ruling, the court of appeals rejects his claim that trial counsel was ineffective in the following ways:

• Failing to introduce C.A.’s attendance records: C.A.

State v. Danny F. Anton, 2012AP1165-CR, District 2, 4/23/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel

In a fact-specific discussion that precludes summary here, the court of appeals holds Anton’s trial attorney was not ineffective for: failing to object to testimony about telephone calls between Anton and a detective, as the evidence was not prejudicial (¶¶10-13);

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident,

State v. Kendrick L. Lee, 2011AP2126-CR, District 4, 3/28/12; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of counsel — failure to present evidence, ineffective cross examination

In a necessarily fact-intensive discussion that defies quick summary here, the court of appeals concludes Lee’s trial attorney was not ineffective for failing to present two categories of additional evidence or in her cross examination of one of the state’s witnesses.

State v. Mark J. Libecki, 2013 WI App 49; case activity

Self-incrimination — waiver of right to exclude immunized testimony and evidence; no need for personal colloquy

In this case the court of appeals holds that when a defendant waives the right to exclude at trial immunized testimony or evidence derived from that testimony, the circuit court need not engage in a personal colloquy with the defendant on the record,