On Point: 8. Counsel, 6th Am.

State v. Theophilous Ruffin, 2022 WI 34, reversing an unpublished court of appeals decision; case activity (including briefs)

This case doesn’t break new ground or develop existing law. Instead, it reverses the court of appeals for not applying the standard a circuit applies when deciding whether to hold an evidentiary hearing on a postconviction motion that alleges ineffective assistance of trial counsel.

State v. Nhia Lee, 2019AP221-CR, petition dismissed as improvidently granted, 5/24/22; case activity (including briefs)

SCOW presumably took this case in order to address one or both of these issues: (1) whether a circuit court must appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance; and (2) whether Lee was denied the right to counsel, due process and a speedy trial as he sat in jail for over 100 days waiting for a lawyer. After briefing and oral argument, 5 justices voted to dismiss his petition as improvidently granted.

State v. Jovan T. Mull, 2020AP1362, petition for review of a per curiam opinion granted, 5/18/22, case activity (including briefs)

Question Presented (from petition):

Under binding case law, in reviewing an ineffective assistance claim, the court must defer to a trial attorney’s strategic decisions. Here, the circuit court found Mull’s attorney used reasonable strategies in choosing a defense and handling cross-examination of a witness, and it deferred to the attorney’s strategy. But the court of appeals substituted its own decisions for those of Mull’s trial attorney. Did the court of appeals impermissibly fail to defer to Mull’s attorney’s strategic decisions?

State v. Percy Antione Robinson, 2020AP1728-CR, certification granted 5/18/22; case activity (including briefs); ; remanded  5/10/23

Question presented:

The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial officer simply conducts a paper review and completes a CR-215 form. Does this procedure trigger the accused’s right to counsel?

State v. Eric Trygve Kothbauer, 2020AP1406-CR, District 3, 5/3/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Kothbauer challenges his trial lawyer’s representation in a prosecution for operating while intoxicated and with a prohibited alcohol concentration. The court of appeals holds trial counsel wasn’t deficient or, even if he was, the deficiency wasn’t prejudicial.

State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)

Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?

State v. Hajji Y. McReynolds, 2022 WI App 25; case activity (including briefs)

This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).

State v. Jeffrey L. Hineman, 2020AP226-CR, petition for review of a per curiam opinion granted 4/13/22; reversed 1/10/23; case activity (including briefs)

Issues (from the State’s petition for review)

1. In cases involving credibility contests between a complaining witness (here, S.S.) and the defendant (Hineman), to what extent can a reviewing court reweigh the witnesses’ credibility in assessing whether, based on omitted evidence, there was a reasonable likelihood of a different result under the Brady materiality or Strickland prejudice standards?

2. The court of appeals also reached an abandoned Shiffra/Green issue and ordered in camera review of S.S.’s therapy files from his private therapist because the therapist acted as a mandatory reporter.

State v. Daimon Von Jackson, Jr., 2019AP2383, petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23;  case activity (including briefs)

Issues (from Von Jackson’s PFR):

1.    Whether a defendant is prejudiced when trial counsel does not communicate with him before his homicide trial.

2.    Whether a defendant should be allowed to obtain new counsel when his current counsel is deficient.

State v. Michael Nelson, 2021AP1133-CR, 3/9/22, District 2 (1-judge opinion, ineligible for publication); case activity

Nelson, who values his right to bear arms, pled guilty to several crimes, including disorderly conduct and domestic violence.  As a condition of his probation, he was barred from possessing firearms. Postconviction, he claimed that his trial lawyer incorrectly advised him that “pleading to disorderly conduct could result in a temporary rather than permanent loss of his gun rights” and that the trial court erred in denying him a hearing on his ineffective assistance of counsel claim.