On Point blog, page 12 of 17
Judicial Bias — Generally, Structural Error
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶10 A biased tribunal, like the lack of counsel, constitutes a “structural error.” See id. at 8; Franklin v. McCaughtry, 398 F.3d 955, 961 (7th Cir. 2005); State v. Carprue,
Recusal – Judicial Bias: Prejudgment of Issue
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether, given the trial judge’s statement at sentencing that defendant’s counsel had in fact provided competent representation, established prejudgment of the issue such that recusal was required for the subsequent postconviction assertion of ineffective assistance of counsel.
Holding:
¶35 … (A)bsent a pervasive and perverse animus,
Judicial Bias — Test — Objective Bias
State v. Justin D. Gudgeon, 2006 WI App 143, PFR filed 7/14/06
For Gudgeon: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶21 The second component, the objective test, asks whether a reasonable person could question the judge’s impartiality. Franklin, 398 F.3d at 960; Walberg, 109 Wis. 2d at 106-07 (looks to whether partiality can “reasonably be questioned”).
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.