On Point blog, page 1 of 1
Court of appeals sacks newly-discovered evidence and other claims to affirm homicide conviction
State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)
“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.
SCOW toughens standards for 974.06 postconviction motions and 971.08(2) plea withdrawal motions
State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity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.
Postconviction motion under § 974.06 – denial of hearing where record conclusively shows no basis for relief
State v. Romey J. Hodges, 2012AP1330, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity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.
Confession – consideration of truthfulness of confession when deciding voluntariness
State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity
The circuit court properly denied the defendant’s Wis. Stat. § 974.06 postconviction motion, which claimed that his trial lawyer was ineffective for not objecting to references to the truthfulness of his confession during a Goodchild hearing to determine voluntariness of the confession and that his postconviction lawyer was ineffective for failing to challenge his trial lawyer’s effectiveness.
Postconviction Motions – § 974.06, Supports Sufficiency-of-Evidence Review
State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09
Pro se
Issue/Holding: Because sufficiency of evidence to sustain the conviction is a matter of constitutional dimension, it may be raised via § 974.06 motion, ¶¶25-30.The court’s discussion also indicates, at least implicitly, that the State v. Obea S. Hayes, 2004 WI 80 holding (sufficiency claim not waived on direct appeal even though not raised in trial court) applies in the context of 974.06 review.