On Point blog, page 8 of 8
Serial Litigation Bar – § 974.06 / Motion to Modify Sentence
State v. John Casteel, 2001 WI App 188, PFR filed
Issue: Whether defendant is entitled to have reviewed on the merits issues that either were, or could have been, raised on prior appeals.
Holding:
¶13. On appeal, Casteel raises three arguments, two of which we previously have addressed. He provides no reasoning why he could not have raised these arguments in his direct appeal or first Wis.
Right to Counsel – Postconviction Proceedings, Collateral Attack
State ex rel. Phillip I. Warren v. Schwarz, 219 Wis.2d 615, 579 N.W.2d 698 (1998), affirming 211 Wis. 2d 708, 566 N.W.2d 173 (Ct. App. 1997) / State v. Phillip I. Warren, 219 Wis.2d 615, 579 N.W.2d 698 (1998), on certification
For Warren: Ralph A. Kalal
Issue: Whether Warren was entitled to appointment of counsel for postconviction proceedings.
Holding (¶66):
¶66 Warren’s motion for post-conviction relief pursuant to Wis.
§ 974.06 Serial Litigation: Defendant Represented by Trial Counsel on Prior, Direct Appeal
State v. Spriggie Hensley, Jr., 221 Wis. 2d 473, 585 N.W.2d 683 (Ct. App. 1998)
For Hensley: Pro se
Issue/Holding: The rule that a defendant’s representation by the same attorney at trial and on direct appeal constitutes a “sufficient reason” for not asserting ineffective assistance of counsel in the direct appeal survives State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994).
§ 974.06 – “Custody” Requirement – Fulfilled Where Defendant on Probation
State v. Donald Mentzel, 218 Wis. 2d 734, 581 N.W.2d 581 (Ct. App. 1998)
For Mentzel: Raymond M. Dall’Osto
Issue/Holding:
We agree with the logic of Napoles. For purposes of § 974.06, Stats., the reality of a probationary status is that it results directly from the trial court’s consideration of dispositional alternatives at a sentencing hearing. Subject to any other bars, we conclude that all defendants on probation have standing to pursue postconviction relief under § 974.06.