On Point blog, page 109 of 214
Judicial Bias — Prejudgment of Issue in Controversy
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether a judge’s instruction to a probation agent, who asked that probation not be extended, “No—I want his probation extended,” evinced judicial bias so as to taint the judge’s subsequent extension order.
Holding: While the judge’s comment did not establish “actual bias” (“given our experience and the reputation of this particular trial judge as a fair and just administrator of the law”),
(State) Habeas – Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel — Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1 … Although Santana may seek habeas relief on his ineffective assistance claim,
Plea-Withdrawal, Post-sentencing – Procedure – Shackled, Deaf Defendant: Must Show Actual Interference with Effective Signing
State v. Jeremy D. Russ, 2006 WI App 9
For Russ: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A deaf defendant who had been shackled when he entered a guilty plea and was sentenced must show actual inability to communicate effectively in order to meet his burden of showing a violation of rights. Thus, even though the defendant adduced expert proof at the postconviction hearing “that communication would be limited and difficult if a deaf person who used sign language were handcuffed,” he did not meet his burden of proof:
¶10 As the trial court observed,
Plea-Withdrawal – Pre-Sentence – Fair and Just Reason: Desire to Avoid Prison
State v. Steven A. Harvey, 2006 WI App 26
For Harvey: Christopher William Rose
Issue/Holding: Defendant’s recalculation of his chance’s at trial after pleading guilty in an effort to maximize chances of avoiding or reducing prison term, uncoupled to any claim of confusion about the nature of the offense, was not a fair and just reason for pre-sentencing plea withdrawal, ¶¶24-29.
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally: Bangert and Hampton, Compared
State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn
Issue/Holding:
¶17 The purpose of filing a Bangert plea withdrawal motion is to obtain an evidentiary hearing at which the State bears the burden of producing evidence showing that, despite a defective plea colloquy, the defendant’s plea was nonetheless knowing and voluntary. State v.
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Generally
State v. Donnell Basley, 2006 WI App 253
For Basley: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding1: The postconviction court erroneously denied without evidentiary hearing Basley’s motion for plea-withdrawal (on Nelson/Bentley rather than Bangert grounds):
¶8 Accompanying Basley’s motion is an affidavit from his postconviction counsel averring that the motion “summarizes … Basley’s expected testimony.” Counsel also acknowledges in the affidavit that Basley’s trial counsel will likely dispute that he threatened to withdraw unless Basley accepted the proffered plea bargain.
Representations Depicting Nudity, § 942.09 – Sufficiency of Notice of Element of “Reasonable Expectation of Privacy”
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether the phrase “reasonable expectation of privacy” in § 942.09 is unconstitutionally vague, where the conduct involved videotaping women in a second-floor bathroom in their own house.
Holding:
¶39 However, this court and the supreme court have already concluded in several different contexts that the term “reasonable” does not render a statute unconstitutionally vague.
Representations Depicting Nudity, § 942.09 – Element of “Reasonable Expectation of Privacy,” Construction
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding:
¶19 The phrase “reasonable expectation of privacy” is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words “expectation of privacy” have a common meaning that can be ascertained with reference to a standard dictionary.
…¶
21 If we apply the common meanings of “expectation” and “privacy” and the well-established meaning of the term “reasonable,” Wis.
Representations Depicting Nudity, § 942.09 – Sufficiency of Evidence
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: The evidence was sufficient to sustain conviction under § 942.09 for videotaping into a bathroom notwithstanding that the window was open, under the following circumstances:
¶53 Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wis.
Guilty Pleas – Withdrawal of Plea — Post-sentencing — Coercion – Grounds: “Package” Agreement, Youthfulness of Defendant
State v. Timothy J. Goyette, 2006 WI App 178
For Goyette: E.J. Hunt, Kathleen M. Quinn
Issue: Whether Goyette was coerced into pleading guilty under a “package” agreement (one “contingent on two or more codefendants all entering pleas according to the terms of the agreement”), given the seriousness of the charges and the youthfulness (age 16) of the defendant.
Holding: In the absence of any evidence that Goyette was too young to understand the implications or that he was pressured by his attorney or unable to meet alone with him,