On Point blog, page 63 of 71
Right to Retained Postconviction Counsel of Choice
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:
¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …¶10 Martinez and Tamalini provide no guidance on the question presented.
Knight Habeas Petition: Collateral Attack on Prior No-Merit Affirmance
State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm
Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.
The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side,
Counsel – Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:
¶21 Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system.
Counsel – Ineffective Assistance – Deficient Performance – Closing Argument: Inconsistent Theories
State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding
Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.
Holding:
¶20 We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions
State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke
Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.
Holding:
¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
Counsel – Right to, Public Expense – Generally
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶10 There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk,
Retained Counsel, Choice of, Generally
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding:
¶7 … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144.
Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:
¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …
¶10 Martinez and Tamalini provide no guidance on the question presented.
Counsel – Right to – Inherent Judicial Authority – Defendant’s Burden of Proof
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding: Defendant did not satisfy his burden of proving indigency, for purposes of invoking inherent judicial authority to appoint counsel, where he failed to submit information regarding attempts to retain counsel as well as information relative to rental property, ¶18.
Counsel – Right to – Defendant Must Cooperate With SPD 1st
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶27 We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case,