On Point: Published 2008

State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate

Issue/Holding: Parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)),

State v. Edward Townsend, 2008 WI App 20, PFR filed 2/13/08
For Townsend: Ellen Henak, SPD, Milwaukee Appellate

Issue: Whether admissibility of evidence gathered in a foreign jurisdiction by Wisconsin officers is tested by the law of that jurisdiction or of Wisconsin.

Holding:

¶1        … Townsend contends that the circuit court should have suppressed unrecorded statements he made while in custody in St.

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction:

¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06).

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …¶10      Martinez and Tamalini provide no guidance on the question presented.

State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm

Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.

The court continues to dredge up the terrain between direct appeal and collateral attack: Knight falls on one side,

State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly

Issue/Holding:

¶8        To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397,

State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School

Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence,

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08
For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶15      The State first argues that Champlain has waived the armband issue. The State contends that Champlain cannot not be heard to complain about the jury seeing the armband device when he himself declined Strand’s offer of a long-sleeved shirt before he was brought into the courtroom for his trial.

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue: Whether the sentencing court may order that DOC distribute “gifted” (as opposed to wage-based) funds in a prisoner’s account to satisfy a restitution obligation.

Holding:

¶12      We observe that Wis. Stat. § 973.20 does not limit the consideration of a defendant’s ability to pay out of funds derived from only earnings or wages. 

State v. Jeremy T. Greene, 2008 WI App 100, PFR filed 7/14/08
For Greene: Kristen D. Schipper

Issue/Holding: Restitution order amendment, directing DOC to disburse funds from the prisoner’s account, did not violate double jeopardy although the amendment occurred three years after the original order:

¶16      Greene’s double jeopardy argument focuses on the fact that DOC, in applying the original restitution order, did not distribute funds from his accounts to pay restitution in the three years prior to the entry of the amended restitution order.