On Point: 8. Counsel, 6th Am.

State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs)

This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial.

State v. Savage, 2020 WI 93, 12/23/20, reversing a court of appeals opinion; case activity (including briefs).

Savage, who was homeless, claimed he received ineffective assistance of counsel when his lawyer failed to advise him that he had a defense under State v. Dinkins, 2012 WI 24, 339 Wis. 2d 78, 810 N.W.2d 787 before he pled guilty to violating the sex offender registry rule that he provide his address to the DOC. According to Savage and the court of appeals, Dinkins held that a homeless person is exempt from sex offender registration requirements.  In a unanimous opinion, SCOW reverses, holds that Dinkins did not establish that broad exemption, and thus counsel did not perform deficiently.

Jama I. Jama v. Jason C. Gonzalez, 2021 WI App 3; case activity (including briefs)

In Wisconsin, a person who brings a legal malpractice suit against the lawyer who represented the person in a criminal case must prove, among other things, that he or she is actually innocent of the criminal charge. Skindzelewski v. Smith, 2020 WI 57, ¶10, 392 Wis. 2d 117, 944  N.W.2d 575; Tallmadge v. Boyle, 2007 WI App 47, ¶¶15, 18, 300 Wis. 2d 510, 730 N.W.2d 173; Hicks v. Nunnery, 2002 WI App 87, ¶¶34-49, 253 Wis. 2d 721, 643 N.W.2d 809. But what happens in a case of “split innocence,” when the person is guilty of some of the crimes but not others? In a case of first impression, the court of appeals holds the person need only prove his innocence of the specific criminal charges as to which he alleges the lawyer performed negligently.

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.

State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)

The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.

State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)

Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

State v. Jerry A. Leister, 2020AP365-CR, District 4, 9/24/20 (1-judge opinion, ineligible for publication); case activity

Leister, charged with intentional mistreatment of animals,  wanted a lawyer but had trouble retaining one.  After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion. 

State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)

Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.

Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)

Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.