On Point: A. Type pf PCM

State v. Julius C. Burton, 2013 WI 61, affirming unpublished court of appeals decision; unanimous opinion by Justice Prosser; case activity

In a case of interest primarily, if not exclusively, to lawyers handling postconviction proceedings in state courts, the supreme court holds Burton’s plea withdrawal motion was insufficient to merit an evidentiary hearing because it failed to allege sufficient facts to support either the ineffective assistance of counsel claim or the claim Burton’s plea was invalid because of a defective plea colloquy.

State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).

What a challenging case.  A jury convicted Jordan of first-degree reckless homicide and other crimes.  He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel,

State v. Romey J. Hodges, 2012AP1330, District 1, 3/26/13; court of appeals decision (not recommended for publication); case activity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.

State v. Ryan L. Kohlhoff, 2012AP1144-CR, 2/14/13; court of appeals decision (1-judge, ineligible for publication); case activity

Plea withdrawal – information about collateral consequences of plea

Plea colloquy telling Kohlhoff that, if he pled no contest to a misdemeanor crime involving domestic violence, he would “lose [his] right to carry a firearm under federal law” accurately informed Kohlhoff of the collateral consequences of his plea,

State v. Douglas H. Stream, Case No. 2011AP2051, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity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.

State v. Brian Avery, 2013 WI 13 (Wis. S. Ct. 1/30/13), reversing 2011 WI App 148; case activity

The supreme court affirms the trial court’s denial of Brian Avery’s Wis. Stat. § 974.06 motion for a new trial based on newly discovered evidence, concluding there isn’t a reasonable probability a jury would have a reasonable doubt about Avery’s guilt. The court also holds Avery was not entitled to a new trial in the interest of justice.

State v. Jacob Turner, 2013 WI App 23;  case activity

Addressing an unusual set of facts, the court of appeals holds Turner’s constitutional rights to an impartial jury and due process were not violated by the seating of a juror who had not been summoned for service and who did not disclose that to the court.

A summons for jury duty was sent to “John P.

State v. Robert Edwin Burkhardt, 2009AP2174-CR, District 1/4, 12/6/12

court of appeals decision (not recommended for publication); case activity

Search & Seizure – Consent 

Consent to search isn’t vitiated by nonpretextual threat to obtain a search warrant:

¶16      … (I)t is well established that, “[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed intention to obtain a warrant is genuine … and not merely a pretext to induce submission.’”  Artic,

State v. Ouati K. Ali, 2011AP2169, District 4, 11/1/12

court of appeals decision (not recommended for publication); case activity

Postconviction Proceedings – Right to Counsel 

A defendant has no constitutional right to counsel outside the direct appeal period, therefore Ali’s argument that failure to appoint counsel counsel to pursue DNA testing deprived him of due process is a non-starter.

¶12      Ali does not claim that the public defender erroneously exercised its discretion in declining to appoint him counsel for the purpose of pursuing his motion for postconviction DNA testing.  

State v. Robert J. Jacobson, 2011AP581, District 2/3, 10/24/12

court of appeals decision (not recommended for publication); case activity; prior history: 2003AP2023-CR (direct appeal), 2005AP1928 (Knight petition)

Jacobson was convicted after jury trial on three counts of attempted homicide. He undertook an unsuccessful direct appeal, followed by a “Knight” habeas petition (the latter arguing that appellate counsel was ineffective in certain respects).