On Point blog, page 37 of 53
TPR: Waiver of jury and stipulation to elements doesn’t survive subsequent appeal, reversal, and remand
Walworth County DH&HS v. Roberta J.W., 2013 WI App 102; consolidated case activity: 2012AP2387; 2012AP2388
The County petitioned to terminate Roberta’s parental rights in 2007 on the grounds her children were in continuing need of protection and services. After a jury trial and dispositional hearing her rights were terminated, but on appeal the termination order was reversed and remanded for a new fact-finding hearing. (¶4).
Exposing genitals to a child, § 948.10, is limited to situations involving face-to-face contact and therefore doesn’t cover “sexting”
State v. Zachary P. Stuckey, 2013 WI App 98; case activty
The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element,
Guest Post: Rob Henak on 974.06 and SCOW’s new standard for ineffective assistance of appellate counsel
State v. Tramell Starks, 2013 WI 69, affirming an unpublished court of appeals decision, case activity. Majority opinion by Justice Gableman, with a dissent by Justice Bradley and joined by Chief Justice Abrahamson and Justice Crooks
On Point is pleased to present this guest post by Attorney Rob Henak, an expert on Wis. Stat. § 974.06 postconviction motions and ineffective assistance of appellate counsel.
Wisconsin Supreme Court adopts rule that assertion of right to counsel expires after a 14 day break in custody
State v. Andrew M. Edler, 2013 WI 73, on certification of the court of appeals; majority opinion by Justice Crooks; case activity
Maryland v. Shatzer, 559 U.S. 98 (2010), allows police to reinitiate interrogation of a defendant who invoked his right to counsel if the defendant has been released from custody for at least 14 days. The Wisconsin Supreme Court now adopts the Shatzer rule,
Wisconsin Supreme Court addresses the standard for deciding competency to refuse medication
Outagamie County v. Melanie L., 2013 WI 67, reversing unpublished court of appeals decision; majority opinion by Justice Prosser; case activity
In an important case for lawyers handling ch. 51 cases, the supreme court concludes there was insufficient evidence to prove a person subject to a commitment order was incompetent to refuse medication. Along the way, the court provides a “detailed interpretation of the statutory language”
Wisconsin Supreme Court declines to overrule State v. Shiffra, but divides on remedy “in this case”
State v. Samuel Curtis Johnson, III, 2013 WI 59 (per curiam), affirming, as modified, an unpublished court of appeals opinion; reconsideration granted, 2014 WI 16 (per curiam); Justices Prosser and Gableman not participating; case activity
(Note: On July 22, 2013, both Johnson and the state filed motions for reconsideration of the court’s original decision;
U.S. Supreme Court holds that a showing of “actual innocence” allows consideration of merits of habeas petition filed after expiration of time limit
McQuiggin v. Floyd Perkins, USSC No. 12-126, 5/28/13
United States Supreme Court decision, vacating and remanding Perkins v. McQuiggin, 670 F.3d 665 (6th Cir. 2012)
In Schlup v. Delo, 513 U. S. 298 (1995), and House v. Bell, 547 U. S. 518 (2006), the Court held that a convincing showing of “actual innocence” enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims.
U.S. Supreme Court: habeas petitioner’s procedural default may be excused if state rules do not offer defendants meaningful opportunity to present IAC claim on direct appeal
Carlos Trevino v. Thaler, USSC No. 11-10189, 5/28/13
United States Supreme Court decision, vacating and remanding 449 Fed. Appx. 145 (5th Cir. Nov. 14, 2011)
Last term in Martinez v. Ryan, 132 S. Ct. 1309 (2012), a case arising out of Arizona, the Court held that where a state’s rules of appellate procedure allowed a state prisoner to raise an ineffective assistance of trial counsel claim only on collateral review,
New trial in the interest of justice ordered for defendant who raised NGI defense
State v. Vicente Paul Vento, 2012AP1763-CR, District 1, 5/21/13; court of appeals decision (not recommended for publication); case activity
Invoking its discretionary reversal power, the court of appeals holds Vento is entitled to a new trial in the interests of justice on the issue of his mental responsibility under Wis. Stat. § 971.15 because the trial court applied the wrong legal standard and based its verdict on speculative testimony from an expert:
¶28 We agree with Vento that there is a substantial probability that a new trial would produce a different result because he met his burden under Wis.
TPR — Failure to assume parental responsibility: special verdict questions; instruction that lack of opportunity and ability is not a defense. Abandonment: Leave to amend petition
Dane County DHS v. John L.-B., 2013AP462, District 4, 5/16/13; court of appeals decision (1-judge, ineligible for publication); case activity
This decision rejects Dane County’s appeal from the dismissal of a TPR petition after a jury verdict in favor of the parent. Here’s the factual background:
Dane County filed a TPR petition against John L.-B. in January 2012, alleging failure to assume parental responsibility and six months of abandonment.