On Point: 8. Counsel, 6th Am.

on petition for review of unpublished decision; for Thompson: J.P. La Chapelle; case activity

Issues (provided by court):

Whether the failure to inform Thompson of the applicable mandatory minimum sentence of 25 years of incarceration prior to trial violated Thompson’s constitutional due process rights.

Whether the complaint in this case was defective under Wis. Stat. § 970.02(1)(a) because it did not state the applicable mandatory minimum sentence,

Estate of Brianna Kriefall v. Sizzler USA Franchise, Inc., 2011 WI App 101

court of appeals decision (recommended for publication); case activity

¶24 n. 7:

On page 36 of its brief responding to Excel’s main appellate brief, E&B asserts:  “[n]ot a single non-Kriefall [Pierringer] settlement agreement” is in the Record.  That is not true, as Excel’s reply brief points out.  

Docket

Decision below:  Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010)

Question Presented:

Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first postconviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim.

State v. Jimmie C. Grayer, 2010AP1749-CR, District 1, 6/1/11

court of appeals decision (not recommended for publication); for Grayer: Bridget E. Boyle; case activity

Postconviction denial of ineffective assistance of counsel challenge without Machner hearing upheld.

1. Although counsel performed deficiently by inaccurately telling the jury in his opening statement that Grayer’s in-custody had not been recorded by the police, Grayer wasn’t prejudiced by the deficiency.

7th circuit court of appeals decision

Counsel, of Own Choosing

By arbitrarily refusing to grant Sellers a continuance so he could retain counsel of his own choosing, the district court violated his 6th amendment right to counsel, a structural error requiring reversal without considering possible prejudice.

The facts are a bit extreme – Sellers thought he was retaining one attorney and instead he was saddled with an associate,

Susan Foley-Ciccantelli v. Bishop’s Grove Condominium Association, Inc., 2011 WI 36, on certification; case activity

Standing – Generally

Lead opinion (3-Justice):

¶5   There is no single longstanding or uniform test to determine standing in the case law.  Courts have inconsistently used a variety of terminologies as tests for standing.  Therefore, as a prerequisite to answering the first question, we review the law of standing. 

State v. Marilee Devries, 2011 WI App 78 (recommended for publication); for Devries: Matthew S. Pinix; case activity

OWI – Repeater – Proof, Prior “Conviction”

Certified copies of proceedings in foreign jurisdictions established adequate proof of prior OWI “connvictions,” § 343.307(1)(d).

¶9        When Wisconsin’s driving laws provide for the enhancement of penalties for a current offense based on prior offenses, the State must present “‘competent proof’” of those earlier offenses.  

State v. Robert L. Brinson, 2010AP001819-CR, District 1, 5/10/11

court of appeals decision (3-judge, not recommended for publication); for Brinson: Paul Bugenhagen, Jr.; case activity

Cautionary instruction cured any potential prejudice from revelation of prior record.

¶16      We disagree.  The trial court instructed the jury several times that it could not consider Brinson’s possible status as a probationer or parolee, or the fact that he spent time in jail,

State v. Calvin Jerome Pirtle, 2011 WI App 89(recommended for publication); for Pirtle: Christopher J. Cherella; case activity

Consent to Search – Georgia v. Randolph

Pirtle’s failure to object to the police presence allowed them to act on the co-tenant’s consent to a warrantless search under Georgia v. Randolph, 547 U.S. 103 (2006):

¶15      In Randolph,

State v. Shantell T. Harbor, 2011 WI 28, affirming unpublished decision; for Harbor: Joseph E. Redding; case activity

Sentence Modification – New Factor

The “new factor” test for sentence modification has split into “two divergent lines of cases”: Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (fact(s) highly relevant to, but not brought out at,