On Point blog, page 190 of 214
SVP – Repealed Statute as Predicate Offense
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer
Issue: Whether conviction under the since-repealed statute of indecent behavior with a child may serve as a predicate offense for a Ch. 980 commitment.
Holding: “(T)he legislature clearly intended to include, within the definition of ‘sexually violent offense,’ the conduct prohibited under a previous version of a statute enumerated in Wis.
Sentencing – Review – Inaccurate Information – Prosecutorial Allocution
State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney
Issue/Holding: Asserted prosecutorial misconduct, in the form of misleading statements during allocution, is tested under State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, 501 (Ct. App. 1992) (whether “what the prosecutor does has ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’”),
SVP – Sufficiency of Evidence – Volitional Capacity
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Although evidence of volitional impairment is required and in this bench trial the trial court erred in commenting to the contrary, ¶35, the court in fact found the existence of such evidence, ¶36.
SVP – Appeal – Waiver of Issue of Prosecutor’s Authority
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer
Issue: Whether Pharm waived objection to the prosecutor’s authorization to file a Ch. 980 petition.
Holding: Pharm’s failure to object to the prosecutor’s filing the petition without going through the Department of Justice under §§ 990.015 and 980.02(1) waived the issue, ¶9.
Guardianship/Protective Placement: Waiver of Conflict of Interest by Person Adjudicated Incompetent
Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849
Issue: Whether a person adjudicated incompetent may waive her attorney’s conflict of interest.
Holding: Because the client’s understanding of the attorney’s potentially divided loyalty is a necessary component of waiver of a conflict, and because no claim is made that the circuit court erred in finding the mother to be incompetent, she was,
Counsel – Conflict of Interest – Guardianship — Dual Representation, Competing Interests
Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849
Issue: Whether an attorney’s dual representation of the subject of a guardianship and her son worked a conflict of interest.
Holding: The two clients had competing interests, including the son’s desire to buy his mother’s house at below market value, and the attorney therefore had a conflict of interest, ¶¶13-17.
Counsel – Conflict of Interest – Prior Representation by Prosecutor: “Reverse Representation”
State v. David Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428
For Kalk: John A. Pray, UW Law School
Issue: Whether the defendant satisfied his burden of showing an actual conflict of interest stemming from his prior representation by the prosecutor on an unrelated charge.
Holding: Given the trial court’s findings of historical fact, defendant did not show that his prosecution was influenced by the prior representation.Analysis: Kalk’s prosecutor had previously represented him on an unrelated charge.
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.