On Point blog, page 64 of 71
Counsel – Right to – Review of SPD Denial of Representation, § 977.06(4)
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding1:
¶11 Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis. 2d at 511.
Briefs – Appendix: Importance of, and Sanction for Falsely Certifying Compliance
State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07
Issue/Holding:
¶23 Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know.
Postconviction Motions – Evidentiary Hearing – Claim of Denial of Effective Counsel 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.”),
Presentence Report – Right to Counsel
State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear
Issue/Holding: The agent’s use of a prior PSI during the interview of defendant for the current case did not trigger any additional right to counsel:
¶10 Thexton further argues that his right to counsel was violated because he was unable to consult with his attorney regarding the use of the prior PSI during the interview.
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.