On Point blog, page 5 of 7
Ineffective Assistance Claim – Necessity of Motion; Entrapment – Child Sex Crime with Computer
State v. Tushar S. Achha, 2009AP1977-CR, District 2, 1/26/11
court of appeals decision (3-judge, not for publication); pro se; case activity; State Resp.
Ineffective Assistance Claim – Necessity of Motion
Failure to preserve a challenge to trial counsel’s performance via postconviction motion waives the issue on appeal, ¶19.
Entrapment – Child Sex Crime with Computer
Challenge to sufficiency of evidence to negate entrapment defense rejected,
Common Law Defenses – Collateral Attack on Order as Element of Pending Offense, Generally
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶42 Where a valid order or judgment is a necessary condition for one of the elements of a crime, a collateral attack upon the order or judgment can negate an element of the crime if the order or judgment is void. See State v.
Common Law Defenses – Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remandingsummary order of court of appeals
For Coleman: Brian Kinstler
Issue/Holding:
¶28 Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice).
Defenses – Issue Preclusion — “Actually Litigated” Requirement: OWI – Prior Judicial Overturn of Administrative Suspension, Not Necessarily Preclusive as to Subsequent Prosecution for Drunk Driving
City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06
For Nytsch: Chad A. Lanning
Issue: Whether a prior judicial review of a driver’s license suspension, overturning the administrative suspension, had a preclusive effect on the issue of probable cause to arrest for drunk driving in the subsequent prosecution for that offense.
Holding:
¶11 Thus, a threshold prerequisite for application of the doctrine is that,
Common Law Defenses – Collateral Attack on Custody Order, § 948.31
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: To attack a custody order as void, in defense against interference with child custody, § 948.31, “the family court would have had to lack subject matter jurisdiction or personal jurisdiction, or Campbell would have had to receive inadequate notice of the divorce proceedings,” ¶46.
Campbell argued that the custody order was procured by fraud,
Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud
State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.
Holding:
¶56 There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57 One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.
Defenses – Issue Preclusion: TPR
Brown County DHS v. Terrance M., 2005 WI App 57
For Terrance M.: Theresa J. Schmieder
Issue/Holding: Because TPR cases are generally a subset of custody cases; and because claim preclusion is available as a means of discouraging groundless requests for modification of custody, both claim and issue preclusion “may also be applied when the facts so require” in TPRs, ¶¶8-9.
The court remands for determination of whether issue preclusion is appropriate in this instance,
§ 948.22(2) (2001-02), Non-Support – “Court of Competent Jurisdiction” – Claim Preclusion
State v. Thomas Scott Bailey Smith, Sr., 2005 WI 104, reversing 2004 WI App 116
For Smith: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: Smith’s unsuccessful prior challenge to the court support order bars him, under principles of claim preclusion, from challenging the validity of the order in the present non-support prosecution, ¶¶21-23.
The court invokes this principle as justification for rejection of Smith’s requested jury instruction on whether the issuing court exercised “competent jurisdiction.” Given the court’s holding that this matter is not an element,
Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years.
Defenses – Claim Preclusion, Generally
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130
Issue/Holding:
¶13. Barksdale next argues that, even if the circuit court properly allowed the warden to raise claim preclusion as a defense, the defense must fail because all of the elements for claim preclusion are not present. The burden of proving claim preclusion is upon the party asserting its applicability. Alexopoulos v. Dakouras,