On Point: 46. WI Court of Appeals

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.

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,

State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly

Issue/Holding:

¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397,

State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence,

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.

Holding:

¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. 

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:

¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order.

State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:

¶8        …

• Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
• As a result of that crime,

State v. Anthony Houston Lee, 2008 WI App 185
For Lee: Carl W. Chessir

Issue/Holding:

¶11      As noted, Wis. Stat. § 973.20 authorizes a trial court to order restitution to victims of a “[c]rime considered at sentencing,” which includes “any crime for which the defendant was convicted and any read-in crime.” Sec. 973.20(1g)(a) & (1r). We conclude that this language is clear and unambiguous, and that it requires us to reverse the restitution order.

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding:

¶57      In summary, while the termination from the community treatment program and the rule violation were presented as conduct that, along with the hotel incident,