On Point blog, page 91 of 216
Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun
State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick
Issue/Holding:
¶17 Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994).
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Revocation of Extended Supervision: Alternatives to Revocation
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro
Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.
Holding:
¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.
Right to Change of Counsel – Inability to Communicate Due to Client’s Severe Hearing Impairment
State v. Dwight Glen Jones, 2007 WI App 248
For Jones: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶13 Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”),
Fines – Exercise of Discretion – Articulation of Sentencing Objectives and Determination of Ability to Pay
State v. Ahern Ramel, 2007 WI App 271
For Ramel: Wm. Tyroler, SPD, Milwaukee Appellate
Issue/Holding:
¶14 A fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. See id. Here, however, with no explanation from the sentencing court of how the fine imposed advanced those objectives,
OWI – Second or Subsequent Offense – Out-of-State Administrative (Non-Refusal) Suspension Doesn’t Qualify
State v. Daniel J. Machgan, 2007 WI App 263
For Machgan: Patrick M. Donnelly
Issue/Holding: An out-of-state administrative DL suspension, not the result of a refusal, isn’t counted as a “conviction” for purposes of OWI enhancement:
¶12 After examination of these relevant statutes, we conclude that Wis. Stat. § 343.307, as the specific statute addressing out-of-state convictions, suspensions or revocations that are to be counted as priors for the purpose of penalty enhancement,
Hit-and-Run, § 346.67(1)(a) – Elements – Operator ID
State v. Aprylann Wuteska, 2007 WI App 157, PFR filed 6/14/07
For Wuteska: Mark H. Bennett
Issue/Holding: The plain text of § 346.67(1)(a) requires the operator of a vehicle involved in an accident resulting in injury to a person or damage to a vehicle to identify him or herself as the operator:
¶13 Applying these principles, we conclude the only reasonable meaning of Wis.
Hit & Run, § 346.67(1) – Elements – “Highway”
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue/Holding: The definition of “highway” for purposes of the hit-and-run statute, § 346.67(1), is found in § 340.01(22), ¶ n. 3.
Hit & Run, § 346.67(1) – Elements – “Accident” Occurring on “Highway,” and Relation to Private Property
State v. Dawn R. Dartez, 2007 WI App 126, PFR filed 4/23
For Dartez: Bill Ginsberg
Issue: Whether hit-and-run liability attaches to an accident occurring on private property.
Holding:
¶13 In this case, as already noted, we are concerned with the meaning of “accident” in Wis. Stat. § 346.67(1) in conjunction with the requirement of “upon the highway” in Wis. Stat.
Implied Consent – Test for Adequacy of Warning, Generally
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding:
¶7 … Because the implied consent law makes no provision for the right to counsel, an officer is correct to record a refusal if the arrestee insists on speaking to an attorney before answering.…¶8 … County of Ozaukee v. Quelle, 198 Wis. 2d 269, 276, 542 N.W.2d 196 (Ct.
Refusal, § 343.305(9) and Implied Consent Law – Interaction with Miranda Warnings
State v. Darren A. Kliss, 2007 WI App 13
For Kliss: Michael C. Witt
Issue/Holding: Administering Miranda rights prior to the “Informing the Accused” caution applicable to OWI does not invalidate the latter (at least where the motorist is concurrently under arrest for a separate crime):
¶14 There is no dispute that Thomas read Kliss the Miranda warning prior to reading the Informing the Accused.