On Point blog, page 221 of 485
Ch. 980 petition is timely as long as it’s filed before the person’s release or discharge from sentence
State v. Hershel R. Stanley, 2014 WI App 89; case activity
Even if DOC was required to release Stanley from prison on his presumptive mandatory release date instead of holding him to his maximum discharge date, the ch. 980 petition filed against him before his discharge date was timely because § 980.02(1m) permits filing a ch. 980 petition before a person is released or discharged from his sentence.
Trial counsel wasn’t ineffective for not moving to strike testimony of witness who invoked the privilege against self-incrimination
State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity
After a victim admitted during cross-examination that she lied under oath during direct examination, the trial court advised the victim of her right against self-incrimination. (¶3-4). She invoked that right and was given immunity under §§ 972.08 and 972.085. (¶4). Cross-examination resumed, yielding additional admissions by the victim that she lied or gave inconsistent statements. (¶¶5-6). Under these circumstances, trial counsel was not ineffective for not moving to strike the victim’s direct examination testimony.
Court holds “independent” sources of information save investigation that also relied on statement compelled by probation agent
State v. Christopher T. Seiler, 2013AP1911-CR, District 2, 7/23/14 (not recommended for publication); case activity
Seiler’s compelled statement to his probation agent didn’t taint a subsequent police investigation that led to new charges because, the court of appeals holds, the police investigation was based on sources “independent” of his statements to the agent.
Counsel wasn’t ineffective for following client’s decision to proceed to trial instead of seeking adjournment
State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity
James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.
Court of appeals holds evidence supports instructions and conviction on lesser-included offense of 1st-degree reckless homicide
State v. Brian A. Patterson, Appeal No. 2013AP749-CR, District 1, 7/22/14 (not recommended for publication); case activity
The State charged Patterson with 1st-degree intentional homicide in a shooting death, but the jury convicted him of a lesser-included offense: 1st degree reckless homicide. In a cut-and-dried decision, the court of appeals held the evidence sufficient to support the conviction, and found no circuit court error in allowing the jury to consider 1st-degree reckless homicide, instructing the jury, or sentencing Patterson.
Trial court didn’t err in answering a question on special verdict form in TPR case
State v. Queentesta H., 2014AP761, District 1, 7/22/14 (1-judge; ineligible for publication); case activity
The circuit court did not err in answering the first question of the special verdict forms submitted to the jury in Queentesta’s TPR trial because the jury could not have reached any other conclusion regarding those questions.
Was the pronouncement of sentence ambiguous? Or was the sentence illegal?
State v. Craig C. Meier, 2013AP2863-CR, District 4, 7/17/14 (1-judge; ineligible for publication); case activity
The answer matters: If the pronouncement of sentence is ambiguous the court could “clarify[] and “reimpose[]” the sentences it originally intended, Krueger v. State, 86 Wis. 2d 435, 442-43, 272 N.W.2d 847 (1979); if the sentence is illegal, it must be commuted to the lawful maximum, § 973.13. In this case the court of appeals holds the circuit court’s initial pronouncement of sentences in this case was ambiguous, so it affirms the circuit court’s “correction” of the sentences to reflect the sentences the court intended to impose.
Mother did not establish fair and just reason to withdraw consent to TPR
Green County DHS v. Ericka L.R., 2014AP1106, District 4, 7/17/14 (1-judge; ineligible for publication); case activity
Assuming the “fair and just reason” standard for plea withdrawal before sentencing also applies to motions to withdraw consent to TPR before disposition, Ericka failed to establish a fair and just reason for withdrawing her voluntary consent to termination of her rights to her daughter.
New trial in the interest of justice required because false testimony clouded the crucial issue of credibility
State v. Daniel D. Bolstad, 2013AP2139, District 4, 7/17/14 (not recommended for publication); case activity
The court of appeals orders a new trial in the interest of justice because the prosecutor’s unwitting use of false testimony as critical evidence to establish that Bolstad was lying so clouded the crucial issue of credibility that it prevented the real controversy from being fully tried.
Rule prohibiting collateral attacks on prior judicial orders applies to administrative orders
State v. Vernon D. Hershberger, 2014 WI App 86; case activity
As a general rule, a person may not collaterally attack a prior judicial order or judgment in a proceeding brought to enforce that order or judgment, e.g., State v. Campbell, 2006 WI 99, ¶¶51-55, 294 Wis. 2d 100, 718 N.W.2d 649. The court of appeals holds this rule also applies to proceedings brought to enforce an administrative order.