On Point blog, page 425 of 483
Failure to Object to Plea Bargain Breach
State v. Michael A. Grindemann, 2002 WI App 106, PFR filed 5/23/02
For Grindemann: Leonard D. Kachinsky
Issue/Holding:
¶27 … Here, Grindemann did object to the prosecutor’s mention of uncharged offenses at sentencing, but the objection was based on the lack of evidence ‘properly before the court,’ not on any claim that the State was violating either the terms or the ‘spirit’ of the plea agreement.
Waiver of Issue: Statutory Double Jeopardy – Guilty Plea Rule
State v. Douglas J. Lasky, 2002 WI App 126, PFR filed 5/16/02
For Lasky: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Claim of “statutory double jeopardy,” § 939.71, not barred by guilty plea waiver rule; court therefore may consider merits of whether elements of federal bank robbery conviction are the same, and therefore preclude prosecution of, state armed robbery.
Waiver of Issue: Sentence – Failure to Object to Inaccurate Information
State v. Jeffrey R. Groth, 2002 WI App 299, PFR filed 12/11/02
For Groth: Peter Koneazny, Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding: Reviewing court may address merits of attack on sentence based on inaccurate information, notwithstanding absence of contemporaneous objection. ¶25. It is appropriate here for the court to overlook waiver, where the state concedes that it can’t support the information now challenged; and defendant’s postconviction motion showed that information was inaccurate and also established a basis for believing that he didn’t have an adequate opportunity to refute the information.
Waiver of Issue: Territorial Jurisdiction Defense
State v. Anthony J. Randle, 2002 WI App 116, PFR filed 4/2/02
For Randle: Paul G. Bonneson
Issue: Whether a territorial jurisdiction objection (that none of the constitutent elements occurred in the state, § 939.03(1)) is waived by guilty plea to a lesser offense.
Holding:
¶14 In this case, we need not decide whether a defendant may waive territorial jurisdiction altogether-that is, when an issue arises as to whether the charging document charges a crime that is committed wholly outside the territorial jurisdiction of Wisconsin.
Judicial Estoppel Bar to Argument — Complete Adoption of Party’s Position Required
State v. Edward W. Johnson, Jr., 2002 WI App 166
For Johnson: Robert T. Ruth
Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24.
Judicial Estoppel Bar to Argument — Acceptance of Curative Instruction Bars Appellate Challenge to Its Efficacy
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02
For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for mistrial.
Holding:
¶22. This is classic judicial estoppel.
Appellate Procedure: Challenge to Judicial Substitution Refusal – Failure to Seek Chief Judge’s Review
Barbara R.K. v. James G., 2002 WI App 47
Issue: Whether review of a denied request for substitution of judge is waived by failure to seek review of the denial by the local chief judge.
Holding:
¶9. … The statute then provides: ‘If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district …
Review of Waived Issue: Plain Error – Polygraph Evidence
State v. Ronald J. Frank, 2002 WI App 31, PFR filed 1/2/02
For Frank: Jane K. Smith
Issue: Whether testimonial references to an accepted offer to take a polygraph amounted to plain error.
Holding: Plain error, § 901.03(4), requires “obvious” error, and is reserved for likely violations of basic constitutional right: “Frank identified no basic constitutional right implicated, and he concedes, ‘[t]here is no evidence in the record as to the time separation,
Standing Objection Insufficient to Preserve “Haseltine” Error
State v. Carlos R. Delgado, 2002 WI App 38
For Delgado: Richard D. Martin, Diana M. Felsmann, SPD, Milwaukee Appellate
Issue/Holding:
¶11. Under the facts and circumstances of this case, it was incumbent upon defense counsel to police Ortiz’s testimony. This area of the law — what a therapist can and cannot testify to — is complicated. As a result, we hold that when an expert witness is permitted to testify in a sexual assault case as to common characteristics of sexual assault victims,
Appellate Procedure – Standard of Review: Implied Consent Statute
State v. Darin W. Baratka, 2002 WI App 288, PFR filed 10/20/02
For Baratka: Michael C. Witt
Issue/Holding:
¶7. Application of the implied consent statute to an undisputed set of facts is a question of law that we review independently. Similarly, reconciling constitutional considerations of due process and equal protection with the requirements of the implied consent statute involve questions of law, which we also review independently.