On Point: 3. Notice of charge

State v. Michael T. Dewey, 2021AP174-CR, District 4, 4/14/22 (not recommended for publication); case activity (including briefs)

Dewey was charged with three dozen counts of child sexual assault related crimes alleged to have occurred during various times between 2005 and 2013. He argues the charging periods for most of the counts were “too long and disjointed” to allow him to prepare an adequate defense and that his trial lawyer was ineffective for not objecting to jury instructions for five of the counts on the ground that the three non-continuous time periods charged for those counts failed to protect his right to a unanimous verdict. The court of appeals rejects his arguments.

State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)

The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.

State v. Robert J. Tisland, 2012AP1570-CR, District 4, 1/22/15 (not recommended for publication); case activity

Even if two legislative acts made inconsistent changes to a criminal statute and meant the changes made by the earlier act were superseded by the later one, a charge filed under the provisions of the superseded act was not, under the circumstances of this case, a charge for a crime unknown to law that deprived the circuit court of jurisdiction or competency; instead, it was a technical charging error that didn’t prejudice the defendant.

Lopez v. Smith, USSC No. 13-946, 10/6/14 (per curiam), reversing Smith v. Lopez, 731 F.3d 859 (9th Cir. 2013); docket

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), … prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.” …. Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith. (Slip op. at 1).

State v. Darryl J. Badzinski, 2011AP2905-CR, District 1, 11/27/12; court of appeals decision (not recommended for publication), petition for review granted 4/18/13; reversed, 2014 WI 6; case activity

Complaint – Adequate Notice (Child Sexual Assault) – Waived Objection 

Badzinski waived his objection to the complaint – counsel conceded, at a motion to dismiss because of vagueness,

State v. Harry Thompson, 2012 WI 90, reversing unpublished decision; case activity

Section 970.02(1)(a) imposes several mandatory duties at initial appearance: the judge must inform the defendant of the charge, furnish him with a copy of the complaint, and personally inform him of the penalties for any felonies in the charge; and, the complaint must set forth the possible penalties, ¶62. These obligations apply to any offense in the complaint carrying a mandatory minimum sentence, 

on review of certification request; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment 

Issues (Composed by On Point): 

1. Whether the “faith healing” defense in § 948.03(6) is limited to prosecutions for child abuse or extends to reckless homicide, § 940.06(1).

2.

State v. Darryl P. Benson, 2010AP2455-CR, District 1, 5/8/12

court of appeals decision (not recommended for publication); for Benson: Mary Scholle, SPD, Milwaukee Appellate; case activity

Sexual assault charges were not duplicitous, and in any event, potential unanimity problem was resolved by the instructions:

¶17      To begin, we conclude that the amended information properly notified Benson of the charges against him.  The counts were set forth with enough specificity to allow Benson to plead and defend himself and to protect him from being tried twice for the same offense.  

court of appeals certification, review granted, 6/13/12; for Leilani Neumann: Byron C. Lichstein; case activity; for Dale Neumann: Stephen L. Miller; case activity

Reckless Homicide and “Faith Healing” as Substitute for Medical Treatment

Convicted of reckless homicide, § 940.06(1), in the death of their daughter for failing to obtain medical treatment, the Neumanns raise various issues relating to interplay with the right to rely on prayer as treatment,

State v. Lamont L. Travis, 2012 WI App 46 (recommended for publication), petition for review granted, 9/18/12; case activity

For unsuccessfully trying to put his hand down his 10-year-old niece’s pants, Travis was charged with, and pleaded guilty to, attempted first-degree sexual assault of a child under age 12, §§ 939.32, 948.02(1)(d). However, that particular form of assault requires use or threat of use of force and violence,