On Point: 29. Postconv. Motions

Court of Appeals certification; case activity

When deciding a defendant’s motion for postconviction DNA testing under Wis. Stat. § 974.07, must the circuit court presume that the DNA testing results will be exculpatory and then assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted?

The issue here turns on the meaning of § 974.07(7)(a)2.

State v. Adrian Castaneda, 2012AP1596-CR, District 1, 8/13/13; court of appeals decision (not recommended for publication); case activity

Sufficiency of evidence to support felony bail jumping conviction

The state and the defense stipulated to the fact that Castaneda had been charged with a felony and agreed the jury would be told only that Castaneda had committed a “crime.” (¶¶3-4, 7-9). A proposed instruction that defined a “crime”

State v.  Zackory J. Kerr, 2013AP273-CR, District 1, 7/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Kerr was sentenced to one year of confinement and one of extended supervision, consecutive to any other sentence. Shortly after sentencing he unsuccessfully challenged the circuit court’s subject matter jurisdiction. (¶¶2-4). A few years later he moved for sentence modification based on  State v. Gerondale,

 State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity.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.

State v. Julius C. Burton, 2013 WI 61, affirming unpublished court of appeals decision; unanimous opinion by Justice Prosser; case activity

In a case of interest primarily, if not exclusively, to lawyers handling postconviction proceedings in state courts, the supreme court holds Burton’s plea withdrawal motion was insufficient to merit an evidentiary hearing because it failed to allege sufficient facts to support either the ineffective assistance of counsel claim or the claim Burton’s plea was invalid because of a defective plea colloquy.

State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).

What a challenging case.  A jury convicted Jordan of first-degree reckless homicide and other crimes.  He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel,

State v. Michael T. O’Haver, 2011Ap2930-CR, District 2/4, 6/20/13; court of appeals decision (not recommended for publication); case activity

Change of venue

The circuit court did not erroneously exercise its discretion in denying O’Haver’s motion to change venue, applying State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). There were a limited number of potentially objectionable pretrial media reports describing the homicide and distress of the victim’s family.

State v. Alvernest Floyd Kennedy, 2012AP523-CR, District 1, 4/9/13, court of appeals decision (not recommended for publication), petition for review granted 2/19/14, affirmed, 2014 WI 132; case activity

Terry stop — reasonableness of length of detention; arrest –probable cause

Kennedy was the driver of a car that struck a pedestrian. (¶¶3-5). After about 30 minutes on the scene investigating the incident,

State v. Romey J. Hodges, 2012AP1330, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity

The circuit court properly denied Hodges’s § 974.06 motion alleging that trial counsel was ineffective for failing to investigate, and properly advise  Hodges regarding, a self defense claim. Based on the record Hodges has not shown his actions were reasonable self-defense; it is also clear from the record trial counsel knew the law of self-defense and gave Hodges effective representation.

State v. Ryan L. Kohlhoff, 2012AP1144-CR, 2/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Plea withdrawal – information about collateral consequences of plea

Plea colloquy telling Kohlhoff that, if he pled no contest to a misdemeanor crime involving domestic violence, he would “lose [his] right to carry a firearm under federal law” accurately informed Kohlhoff of the collateral consequences of his plea,