On Point: A. Type pf PCM

State v. Jeffrey C. Denny, 2016 WI App 27, petition for review granted 6/15/16, overruled, 2017 WI 17; case activity (including briefs)

If you are thinking about filing a motion under § 974.07 or are in the middle of litigating such a motion, you’ll want to read this decision. The court of appeals holds Denny is entitled to DNA testing of certain evidence because he showed that the items he sought to test are “relevant to the investigation or prosecution that resulted in [his] conviction….” The court also holds he is entitled to testing at public expense because it is reasonably probable he would not have been convicted if exculpatory DNA testing results had been available at the time of his conviction.

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs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. Andrew M. Obriecht, 2014AP445-CR, District 4, 8/14/14 (1-judge; ineligible for publication); case activity

Obriecht didn’t show the victim’s mental health records might contain relevant information necessary to his defense, so the circuit court properly denied his motion to conduct an in camera review of the records.

State v. Tramell Starks,  2013 WI 69, affirming an unpublished court of appeals decision, case activity; reconsideration denied 7/24/14, concurring opinion by Chief Justice Abrahamson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State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity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.

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

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.”  

Court of Appeals certification; case activity

When deciding a defendant’s motion for postconviction DNA testing under Wis. Stat. § 974.07, must the circuit court presume that the DNA testing results will be exculpatory and then assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted?

The issue here turns on the meaning of § 974.07(7)(a)2.

State v. Adrian Castaneda, 2012AP1596-CR, District 1, 8/13/13; court of appeals decision (not recommended for publication); case activity

Sufficiency of evidence to support felony bail jumping conviction

The state and the defense stipulated to the fact that Castaneda had been charged with a felony and agreed the jury would be told only that Castaneda had committed a “crime.” (¶¶3-4, 7-9). A proposed instruction that defined a “crime”