On Point blog, page 4 of 11
Sentencing – Review – Articulation of Factors – Consideration of Sentences in Other, Similar Cases (Individualized Sentencing)
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau
Issue/Holding:
¶15 Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted that Wellens only examined Sherman for a short period of time and that his perceptions of Sherman were plainly outweighed by contradictory testimony of people who were more familiar with Sherman.
Sentencing Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08
For Sherman: John J. Grau
Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error:
¶9 We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. § 948.02(2) counts was harmless error.
Confrontation – Expert Opinion Based on Hearsay
State v. Craig A. Swope, 2008 WI App 175
For Swope: Dianne M. Erickson
Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of natural causes so remote as to be impossible.
Holding:
¶35 In State v.
Counsel – Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:
¶21 Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system.
Counsel – Ineffective Assistance – Deficient Performance – Closing Argument: Inconsistent Theories
State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding
Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.
Holding:
¶20 We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions
State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke
Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.
Holding:
¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland,
Counsel – Right to, Public Expense – Generally
State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se
Issue/Holding:
¶10 There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk,
Retained Counsel, Choice of, Generally
State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski
Issue/Holding:
¶7 … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144.
Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment
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.
OWI – Sufficiency of Evidence: “Operated” Vehicle on “Highway”
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08
For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate
Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.”
Holding:
¶13 Wisconsin Stat. § 346.63(3)(b) defines “operate” as “the physical manipulation or activation of any of the controls of a motor vehicle necessary to put it in motion.” Mertes’ argument focuses almost exclusively on the definition of “operation” under Wis.