On Point blog, page 461 of 484
Counsel – Ineffective Assistance – Deficient Performance – failure to investigate, based on defendant’s version
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue: Whether defendant’s first counsel was ineffective for failing to file formal discovery demand and investigate various matters.
Holding: Because counsel withdrew before the prelim, and because there is no right to discovery before prelim, counsel couldn’t have been deficient for failing to file a demand, ¶37; because defendant failed to show what information counsel might have uncovered,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Expert – Non-Pursuit of NGI Defense After Rejection by Expert Who Misunderstood Correct Test
State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling
Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.
Holding: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.”
Right to Counsel – Judicial Appointment, Discretion to Continue on Appeal
Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant; James L. Boardman; Chris R. Velnetske
Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal.
Holding: Judicial appointment of counsel in a CHIPS case doesn’t automatically terminate upon disposition, the circuit court retaining authority to continue the appointment for purposes of appeal.
Defenses – Claim Preclusion – Revocation Hearing Determination of Insufficient Proof of Element of New Offense No Bar to Prosecution of That Offense
State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine,
Double Jeopardy – Multiplicity: Sexual Assaults, Single Incident
State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543
For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy.
Holding: Though the offenses weren’t separated in time, each required separate volitional acts and were therefore significantly different in nature for double jeopardy purposes. ¶¶24-26.
Enhanced Penalties — Proof: Prior Need Not Be Part of Appellate Record
State v. Thomas W. Koeppen, 2000 WI App 121, 237 Wis.2d 418, 614 N.W.2d 530
For Koeppen: Richard L. Zaffiro
Issue: Whether the repeater-qualifying convictions were inadequately proved merely because they weren’t made part of the appellate record.
Holding: “Even if the trial court did not include these documents in the appellate record, the documents’ existence at the time of sentencing is not negated because,
Double Jeopardy – Sentence: Modification – Four Months After Sentencing, As Violating Expectation of Finality
State v. Guy R. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881
For Willett: Susan E. Alesia, SPD, Madison Appellate
Issue: Whether the trial court had authority to change its sentences from concurrent to consecutive to a separately imposed sentence, four months later, after concluding that its sentencing was based on an erroneous understanding of the law.
Holding: Although the trial court clearly wanted its sentences to run consecutive to a separately imposed sentence,
Double Jeopardy – Sentence: Amending Sentence to Correct Mistaken Oral Pronouncement
State v. Frank James Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42
For Burt: Michael P. Jakus
Issue: Whether the trial court violated double jeopardy by amending sentence the same day of imposition, before judgment of conviction had been entered, after realizing it had mistakenly said “concurrent” instead of “consecutive.”
Holding: “The double jeopardy clauses did not attach a degree of finality to Burt’s original sentence that prevented the trial court from correcting its error later in the same day,”
Enhancer — § 941.29(2m), 2nd-Offense Felon in Possession, Supports Repeater
State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248
For Gibson: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding:
¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense,
Enhancer — § 939.63, Dangerous Weapon Enhancer — Nexus to Predicate Offense
State v. John W. Page, 2000 WI App 267, 240 Wis.2d 276, 622 N.W.2d 285
For Page: William E. Schmaal, SPD, Madison Appellate
Issue: Whether possession of dangerous weapon enhancer, § 939.63, requires actual use or threat to use the weapon while committing the enhanced offense.
Holding:
Under the correct reading of [State v.] Peete [,185 Wis.