On Point blog, page 11 of 17
State v. Roy K. Collins, 2009AP1060, District I, 4/27/10
court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.
Serial Litigation Bar
Collins’ § 974.06 motion is procedurally barred by his failure to allege a “sufficient reason” for not previously raising issues as part of his prior, no-merit appeal, ¶1.
Bit more interesting than that, in the following sense: the court not only pays lip service to the idea that it “must pay close attention to whether the no merit procedures were followed,”
Closing Argument: Prosecutorial Misconduct – Interest-of-Justice Review
State v. Clifford D. Bvocik, 2010 WI App 49; for Bvocik: James C. Murray
Prosecutorial Misconduct – Closing Argument
Improper prosecutorial closing argument—encouraging jury to draw false inference—requires new trial in interest of justice; State v. Robert H. Weiss, Jr., 2008 WI App 72, controlling:
¶1 State v. Weiss, 2008 WI App 72, ¶¶15-17, 312 Wis. 2d 382,
State v. Jeffrey A.W., 2010 WI App 29
court of appeals decision; for Jeffrey A.W.: Hans P. Koesser
Resp Br; Reply
Counsel – Adequacy of Investigation
Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although failure, not product of deficient performance, ¶12:
There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.
Counsel: Failed but Adequate Investigation; Interest-of-Justice Review: Critical Evidence (Absence of Herpes) Not Heard by Jury
State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser
Adequacy of Counsel Investigation
Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.
¶12 There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance.
Plea-Withdrawal – Post-Sentencing – Prima Facie Showing: Plea Questionnaire Function
State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: A court may incorporate a plea questionnaire form into the guilty plea colloquy, but only up to a point:
¶32 The Plea Questionnaire/Waiver of Rights Form provides a defendant and counsel the opportunity to review together a written statement of the information a defendant should know before entering a guilty plea.
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.
Name Change, Judgment of Conviction – Based on Claim of Common Law Right to Change Name
State v. Jermaine Smith, 2009 WI App 104
Pro se
Issue/Holding:
¶1 Jermaine Smith appeals from an order denying his “motion to amend his Judgment of Conviction to reflect his common law spiritual name,” which he states is “Marcolo Von Capoeira.” Because Smith’s motion fails to provide any support for his assertion that he used the name Marcolo Von Capoeira for ten years (including four years prior to the time his crime was committed) and because he did not raise this issue during his criminal case,
Plea-Withdrawal – Post-Sentencing – Bangert Hearing – State Met Burden of Proof
State v. Christopher S. Hoppe, 2009 WI 41, affirming 2008 WI App 89
For Hoppe: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Notwithstanding “irregularities” with respect to the burden of proof, the hearing on Hoppe’s Bangert challenge established that his plea was knowing and voluntary, given “the circuit court’s findings … that the circuit court disbelieved the defendant’s claims that he did not receive and did not understand the information that was provided in the Plea Questionnaire/Waiver of Rights Form but that was not provided to the defendant during the plea colloquy,” ¶¶46-58.
Motion to Reconsider – Basis, Generally
State v. Elizabeth A. White, 2008 WI App 96
For White: T Christopher Kelly
Issue/Holding:
¶8 To prevail on a motion for reconsideration, a party must either present newly discovered evidence or establish a manifest error of law or fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festival Popcorn Wagons, Ltd., 2004 WI App 129, ¶44, 275 Wis. 2d 397,
No Waiver Bar, Collateral Attack Based on Newly Discovered Evidence
State v. Audrey A. Edmunds , 2008 WI App 33; prior history: State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), habeas relief denied, Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002)
For Edmunds: Keith A. Findley, UW Law School
Issue/Holding: Presentation of expert testimony to establish, under a theory of newly discovered evidence,