On Point blog, page 102 of 133
Sentencing – Factors – Victim’s Good Character
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶63. Gallion’s next claim on appeal is that the circuit court erred in placing undue emphasis on the character of the victim. …¶64. Under Wisconsin law,
SVP – Trial: Evidence – Misconduct, § 904.04(2)
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶16. In order to be admissible in a ch. 980 proceeding, all evidence must be relevant and that relevance must not be outweighed by the danger of unfair prejudice. Wis. Stat. § 904.01; Wis. Stat. § 904.03;
Sentencing Review – Factors – TIS
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding:
¶28. With the advent of truth-in-sentencing, we recognize a greater need to articulate on the record the reasons for the particular sentence imposed. Under the old,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate Confession to Crime by Defendant’s Brother
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding: Failure to interview or subpoena an investigator to whom the defendant’s brother had confessed was deficient performance; the basis for this failure, that counsel “thought the confessions were hearsay and that York’s reports were the work product of the State Public Defender’s office,
Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor
State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.
Holding:
¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years.
Enhancer — TIS-I – Calculation (Confinement vs. Supervision)
State v. Michael D. Jackson, 2004 WI 29, affirming unpublished decision of court of appeals
For Jackson: Joseph E. Schubert
Issue: Whether penalty enhancement of a TIS-I sentence, § 973.01(2) (1997-98), applies to the confinement portion alone, or to the total term of imprisonment (including extended supervision), of a bifurcated sentence.
Holding:
¶17. The key to understanding the applicability of penalty enhancers under TIS-I lies in Wis.
Due Process – Notice, Generally
Amy Z. v. Jon T., 2004 WI 73
For Jon T.: Geoffrey Dowse
Issue/Holding:
¶20. Due process requires that the notice provided reasonably convey the information required for parties to prepare their defense and make their objections. Bachowski v. Salamone, 139 Wis. 2d 397, 412, 407 N.W.2d 533 (1987).
¶21. The guardian argues that Jon should have anticipated that all of the issues addressed in the guardianship petition would be addressed at the hearing.
Substantive Due Process, Generally
Monroe Co. DHS v. Kelli B., 2004 WI 8, affirming 2003 WI App 88, 263 Wis. 2d 413, 662 N.W.2d 360
For Kelli B.: Timothy A. Provis
Issue/Holding:
¶19 Kelli asserts that the statute, as applied to her, violates her constitutional right to substantive due process. This right emanates from the Fourteenth Amendment of the Constitution. In essence, it protects against governmental actions that are arbitrary and wrong “regardless of the fairness of the procedures used to implement them.”
Right to Counsel – Change of Counsel
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168, 266 Wis. 2d 599, 669 N.W.2d 204
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL
Issue/Holding:
¶66. The final issue we consider is whether the circuit court erred in failing to permit McDowell new counsel.
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Defendant’s Perjurious Testimony
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168; habeas relief denied, McDowell v. Kingston, 497 F.3d 757 (7th Cir 2007)
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray
Issue/Holding: (Given the significance of the holding, at-length quoting is required in regard to counsel’s performance obligations relative to a client whose testimony may be perjurious:)
¶2.