On Point blog, page 64 of 70
Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun
State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick
Issue/Holding:
¶17 Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994).
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Revocation of Extended Supervision: Alternatives to Revocation
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro
Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.
Holding:
¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.
Right to Change of Counsel – Inability to Communicate Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13 Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),
Briefs – Citing Unpublished Opinion
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06For Milanes: Joan M. Boyd
Issue/Holding:
¶21 … Further, appellate counsel cited an unpublished case in her opening brief, contrary to Wis. Stat. Rule 809.23(3). This does not appear to be inadvertent, since the citation ends with the parenthetical “(unpublished).” Our supreme court has reasoned that the rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration.
Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel – Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1 … Although Santana may seek habeas relief on his ineffective assistance claim,
Waiver (of Appellate Counsel) — By Conduct
State ex rel. Perry Van Hout v. Endicott, 2006 WI App 196, PFR filed 10/11/06
For Van Hout: Robert R. Henak
Issue: Whether Van Hout waived his right to appellate counsel where he rejected counsel’s offer of a no-merit report and then, after having been warned of the dangers of proceeding pro se, chose neither to open an envelope containing information counsel’s motion to withdraw nor to respond to the court of appeals order granting the motion.
Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Generally
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281,
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.
Holding:
¶24 We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely.
Counsel – Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Postconviction Motion to Disqualify – Actual Conflict Required
State v. Christopher M. Medina, 2006 WI App 76
For Medina: Daniel P. Ryan
Issue/Holding:
¶33 The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record.
Counsel – Conflict of Interest – Waiver of Conflict by Defendant, Generally
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: A trial court may, but is not required to, override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right:
¶13 Contrary to Dion’s assertion,