On Point blog, page 13 of 17
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements, Dual Bangert and Nelson/Bentley Motion
State v. Andrae D. Howell, 2007 WI 75, reversing 2006 WI App 182
For Howell: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding:
¶74 The Bangert and Nelson/Bentley motions, however, are applicable to different factual circumstances. [47] A defendant invokes Bangert when the plea colloquy is defective; a defendant invokes Nelson/Bentley when the defendant alleges that some factor extrinsic to the plea colloquy,
Plea-Withdrawal, Post-sentence — Procedure: Prima Facie Showing, Relative to Rights Waived – Illiterate Defendant, Perfunctory Colloquy
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: On the particular facts (illiterate defendant, no written questionnaire, perfunctory colloquy) the defendant was entitled to a Bangert hearing on whether the understood the nature of the rights waived by his guilty plea.
With respect to waiver of right to jury trial,
Plea-Withdrawal, Post-sentence — Procedure: Prima Facie Showing, Relative to Knowledge of Charge – Illiterate Defendant, Perfunctory Colloquy
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding: The defendant demonstrated a prima facie showing that his guilty plea was inadequate, where he was illiterate (such that a plea questionnaire wasn’t even prepared) and the trial court’s colloquy was superficial, ¶¶53-58.
The facts are sufficiently extreme that recurrence is highly unlikely and they therefore won’t be detailed in this summary;
Postconviction Motions – § 974.06, Serial Litigation Bar, Penalty Enhancer Exception
State v. Thomas A. Mikulance, 2006 WI App 69
Pro se
Issue/Holding: A “narrow” exception to the serial litigation bar of § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994) is established by State v. Flowers, 221 Wis. 2d 20, 27, 586 N.W.2d 175 (Ct. App. 1998), which “applies only where the defendant files a motion alleging that the State has failed to prove the prior conviction necessary to sustain the habitual criminal status (by proof or by admission) or when the penalty imposed is longer than permitted by law for a repeater,” ¶¶1,
No-Merit Report: No Serial Litigation Bar Where Arguably Meritorious Issue Overlooked
State v. Ricky J. Fortier, 2006 WI App 11
Issue/Holding: Fortier’s failure to respond to no merit report does not, under the circumstances, work serial litigation bar to subsequent, arguably meritorious challenge to sentence:
¶15 Fortier contends that he should not be precluded from raising the issue of a sentence illegally raised upon resentencing, even though he failed to raise it in a response to the no-merit report at the time of the original appeal.
Postconviction Motions — § 974.06, Supports Interest-of-Justice Review by Supreme Court
State v. Ralph D. Armstrong, 2005 WI 119, reversing unpublished decision
For Armstrong: Jerome Buting; Barry Scheck
Issue/Holding: Supreme court has both statutory and inherent authority to order new trial in the interest of justice, even on collateral review (as opposed to direct appeal), ¶¶119-24. (State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990) (court of appeals has no authority under § 752.35 to engage in no authority to undertake interest-of-justice review on collateral attack) severely questioned if not explicitly overruled.
Discovery – DNA Testing, at Defendant’s Own Expense, § 974.07(6)
State v. James M. Moran, 2005 WI 115, reversing unpublished decision
For Moran: Colleen D. Ball, State Bar Pro Bono Project
Issue/Holding:
¶3 We conclude that the plain language of § 974.07(6) gives a movant the right to conduct DNA testing of physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material,
Plea-Withdrawal, Post-sentencing — Procedure — Pleading Requirements for Evidentiary Hearing on Bangert Motion Relative to Nature of Charge
State v. James E. Brown, 2006 WI 100, reversing summary order
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶59 To earn a Bangert evidentiary hearing, a defendant must satisfy a second obligation. In addition to making a prima facie case that the circuit court erred in the plea colloquy, a defendant must allege he did not enter a knowing,
Postconviction Motions – § 974.06, Serial Litigation Bar
State v. Tommie Thames, 2005 WI App 101
Pro se
Issue/Holding:
¶12 We conclude that Thames’s arguments are procedurally barred. Thames has raised essentially the same issues he raised in his direct appeal and in his 1997 Wis. Stat. § 974.06 motion. The fact that Thames’s appeal of the trial court’s order denying his 1997 § 974.06 motion was dismissed pursuant to Wis. Stat. § 809.83(2) (1997-98) [6] does not change the result.
Evidentiary Hearing – IAC Claim – Trial Court Discretion to Deny
State v. David J. Roberson, 2005 WI App 195
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate
Issue/Holding:
¶11 A circuit court acts within its discretion in denying without a Machnerhearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations;