On Point: 5. 974.06, collateral attack

State v. Rafael D. Newson, 2018AP551, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Newson claims that his trial and postconviction lawyers were ineffective for failing to raise lack of jurisdiction caused by the State’s failure to file its complaint against him before he was extradited to Arizona. He also argued that the Escalona bar should not apply given that he was in Arizona at the time of his direct appeal and his first two postconviction motions. The court of appeals did not bite on either.

Defense attorneys hear an awful lot about the “importance of finality” in criminal cases–especially at the §974.06 stage of proceedings. What about the victims? What about the waste of additional judicial resources? There must be a stopping point! Do those arguments really make sense if the wrong person was convicted? The latest edition of The Marshall Project highlights data showing that wrongful convictions result in tens to hundreds of thousands of additional felonies and violent crimes per year.

State v. Daniel G. Scheidell, 2015AP1598-CR, 3/29/17, District 2 (not recommended for publication); case activity (including briefs)

Congrats to the Remington Center for a winning a new trial in the interests of justice based on newly-discovered, 3rd-party perpetrator evidence 19 years after Scheidell was convicted of 1st degree sexual assault and armed robbery. Even better, their win was affirmed on appeal!

State v. Jermaine D. Greer, Sr., 2015AP692, District 4, 7/21/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Greer filed a pro se motion for postconviction relief under § 974.06. It is his fourth postconviction motion and—like his third postconviction motion, which he also filed pro se—it argued he is entitled to withdraw his pleas. Greer doesn’t explain why the grounds for plea withdrawal he raises in his fourth motion could not have been raised in his third motion,

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs

Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.

State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity; reconsideration denied 7/24/14, concurring opinion by Chief Justice Abrahamson

Taking a cue from Napolean Bonaparte, the Wisconsin Supreme Court just denied two, year-old reconsideration motions outlining many serious mistakes in the Starks majority opinion (written by Justice Gableman).  No, that statement is not just sour grapes.  The Attorney General also asked for reconsideration  along the same lines as the defense. The Chief Justice took the extraordinary step of attaching both motions to her concurrence.

State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity

Oliver Wendell Holmes said “hard cases make bad law.”  This decision proves that simple cases can too.  If you thought winning a §974.06 postconviction motion or a § 971.08(2) motion for plea withdrawal due to the trial court’s failure to give deportation warnings was tough before, wait until you read this decision.

Review of unpublished per curiam court of appeals decision; case activity

Issues (composed by On Point)

Whether the defendant’s Wis. Stat. § 974.06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing.

Whether postconviction counsel was ineffective under the standard set forth in Smith v.

State v. Michael L. Cramer, 2012AP2547; District 1; October 15, 2013 (not recommended for publication); case activity

A jury convicted Cramer of 1st-degree reckless homicide for the death of his 10-week old son.  Both the Milwaukee County medical examiner and the attending physician testified for the State at trial. In their opinions, the baby died from blunt force injuries, including trauma to the head and brain.  The defendant’s expert testified that the baby’s injuries were caused by “resuscitated Sudden Infant Death Syndrome.”  

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,