On Point: 11. Defense Wins

seventh circuit court of appeals decision, affirming habeas grant following remand in 539 F.3d 766 (further case history: here)

Habeas Review – Evidentiary Hearing 

The rule of Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that 2254(d)(1) review is limited to the state-court record, doesn’t apply where the state court didn’t address a component part of the claim (here, 

State v. Marilyn M. Torbeck, 2012AP522-CR, District 2, 8/1/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶6        … For the State to charge Torbeck with OWI under § 346.63(1)(a), DFE must be either an intoxicant, a controlled substance, a controlled substance analog, or a drug.  DFE is not listed as a controlled substance under either Wisconsin or federal law.  A “controlled substance analog” is defined as “a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance.”  Wis.

State v. Terry G. Vollbrecht, 2012 WI App 90 (recommended for publication); case activity

§ 974.06 Motion – Laches Inapplicable 

¶17 n. 14:

While we acknowledge the State’s argument that Vollbrecht’s Wis. Stat. § 974.06 motion is barred by laches and its request that we certify the issue to the supreme court, we decline the State’s invitation.  The State concedes that the supreme court has previously held that laches does not apply under § 974.06. 

State v. Randy L. Martin, 2012 WI 96, reversing unpublished decision; case activity

Miranda – “Custodial Interrogation”  

Martin was arrested for disorderly conduct and handcuffed at the scene of an otherwise unrelated incident (¶6, id. n. 6). Search of his car yielded a gun. When an officer asked him, Martin denied ownership. The officer then prepared to arrest Henry, Martin’s companion,

State v. Joseph J. Spaeth, 2012 WI 95, on certification; case activity

Probationer’s statement, compelled by rules of his supervision, is covered by derivative as well as use immunity in a criminal prosecution.

¶3   We hold that the statement that Spaeth made to Oshkosh police was derived from the compelled, incriminating, testimonial statement that he made to his probation agent.  Thus,

State v. Harry Thompson, 2012 WI 90, reversing unpublished decision; case activity

Section 970.02(1)(a) imposes several mandatory duties at initial appearance: the judge must inform the defendant of the charge, furnish him with a copy of the complaint, and personally inform him of the penalties for any felonies in the charge; and, the complaint must set forth the possible penalties, ¶62. These obligations apply to any offense in the complaint carrying a mandatory minimum sentence, 

State v. Kami L. Jennings, 2011AP2206-CR, District 2, 6/27/12

court of appeals decision (1-judge, ineligible for publication); case activity

Evidence, introduced by the State, as to the defendant’s belief in reincarnation was inadmissible:

¶15      While the parties did not brief the issue, we hold that Jennings’ testimony should have been excluded as inadmissible character evidence under Wis. Stat. § 904.04(1).  See State v.

State v. Troy D. Jefferson, 2011AP1778-CR, District 1, 6/26/12

court of appeals decision (not recommended for publication); case activity

Counsel was ineffective for failing to inform the sentencing court “about Jefferson’s good character and positive social history.”

 ¶17      Specifically, trial counsel’s failure to inform the trial court about Jefferson’s good character and positive social history in any meaningful way was deficient because it was not,

State v. Willie H. Jackson, 2012 WI App 76 (recommended for publication); case activity

§ 973.048(1m) (2003-04) authorizes the sentencing court to require sex offender registration under § 301.45 for conviction of enumerated crimes, “if the court determines that the underlying conduct was sexually motivated as defined in s. 980.01(5)” and public protection would be advanced thereby. (“Sexually motivated,” as might be imagined, means that “sexual arousal or gratification”

MaryBeth Lipp v. Outagamie County Dept. of Health and Human Services, 2011AP152, District 3, 6/5/12

court of appeals decision (not recommended for publication); case activity

Failure to decide a guardianship petition within the statutorily mandated 90 days of filing (§ 54.44(1)) caused the trial court to lose competency to proceed. Lack of objection didn’t waive the issue, ¶¶11-12, citing Village of Trempealeau v. Mikrut,