On Point: 8. Counsel, 6th Am.

Dawn H. v. Pah-Nasa B., 2011AP1198, District 3, 11/29/11

court of appeals decision (1-judge, not for publication); for Pah-Nasa B.: Lora B. Cerone, SPD, Madison Appellate; case activity

Given the proof of lack of parental responsibility as a ground for terminating Pah-Nasa’s rights, counsel’s failure to object to testimony about a fight between Pah-Nasa and his mother wasn’t prejudicial.

¶14      We conclude Pah-Nasa has failed to prove prejudice,

State v. Jeffrey Steinhorst, 2011AP1360-CR, District 4, 11/23/11

court of appeals decision (1-judge, not for publication); for Steinhorst: Steven Cohen; case activity

Steinhorst made a prima facie showing that he did not validly waive counsel in a prior OWI case; therefore, he is entitled to a hearing at which the State must prove proper waiver, by clear and convincing evidence, else the prior conviction may not be used to enhance his current case.

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

That was a mistake.

Samuel Morgan v. Hardy, 7th Cir No. 10-3155, 11/7/11

seventh circuit decision

Habeas – Recantation 

The Illinois state court didn’t mishandle either the facts or applicable law, and its rejection of State witness Prater’s post-trial recantation as incredible wasn’t unreasonable. The petitioner’s task is to “show[] that the state court determined an underlying factual issue against the clear and convincing weight of the evidence” – though the recantation here is consistent with the physical evidence,

State v. Joseph J. Johnson, 2011AP806-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Johnson: Rebecca J. Vahle; case activity

Trial counsel’s failure to move to strike several jurors for cause didn’t require Machner hearing:

¶12      In State v. Traylor, 170 Wis. 2d 393, 399-400, 489 N.W.2d 626 (Ct. App. 1992), this court held that a defendant’s trial counsel was deficient for failing to ask appropriate follow-up questions of jurors who had admitted bias.  

Matthew Steffes v. Thurmer, 7th Cir No. 09-3317, 11/4/11

seventh circuit decision, denying habeas relief on review of 2006AP1633-CR

The “concurrent sentence doctrine” – which “allows appellate courts to decline to review a conviction carrying a concurrent sentence when one ‘concurrent’ conviction has been found valid,” Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir.2009) – doesn’t apply here in view of a separate assessment and the potential to affect parolability:

…

State v. David W. Domke, 2011 WI 95, reversing unpublished decision; for Domke: Martha K. Askins, SPD, Madison Appellate; case activity

Although Domke establishes deficient performance in several different respects, he fails to satisfy his burden of showing prejudice.

• Failure to object to hearsay testimony / medical treatment and diagnosis exception inapplicable to counselors and social workers.

In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94, remanding sanctions order; for State Public Defender: Joseph N. Ehmann; case activity; subsequent history: sanction re-imposed on remand

Monetary sanction summarily ordered by court of appeals against appellate counsel for allegedly violating appendix-content rule reversed, with following “suggestion” for procedure to be followed in such situations:

¶5   Considering the interests of the court of appeals,

Kathleen N. v. Brenda L. C., 2010AP2737, District 4, 10/27/11

court of appeals decision (1-judge, not for publication); for Brenda l.C.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Brenda isn’t entitled to a new TPR trial in the interests of justice, notwithstanding a line of inquiry that went to the respective financial capabilities of Brenda and her sister’s family (which sought the termination). “The evidence established that Brenda had last seen Samantha approximately six months prior to the hearing at a family gathering and had only spoken to Samantha at that event for a few minutes,

State v. Edward Beck, 2010AP872-CR, District 4, 10/20/11

court of appeals decision (1-judge, not for publication); pro se; case activity

Circuit court is under no obligation to seek extension of the § 809.30(2) limitation period for its ruling on a postconviction motion.

¶6        Beck reads too much into the 2001 amendment to Wis. Stat. § 809.30(2)(i).  The amendment simply added language to § 809.30(2)(i) specifying the entities that may request an extension,