On Point

State v. Marcos Rosas Villegas, 2018 WI App 9; case activity (including briefs)

This opinion resolves 2 issues worthy of publication and has already generated a petition for review (from an earlier version of the opinion, which was withdrawn and has now been replaced).  According to the court of appeals, an attorney does not perform deficiently by failing to inform his client, an undocumented immigrant, that a plea would render him inadmissible to the U.S. and ineligible for DACA. Furthermore–for the first time–the court of appeals holds that the “guilty plea waiver” rule applies to claims of ineffective assistance of counsel, unless such a claim is offered as a reason to overturn the plea itself.

Click here for SCOWstats update of its 2016 post Women in the Wisconsin Supreme Court, which celebrated the steady rise in the number of women arguing cases there.  The good news is that the percentage of arguments by women lawyers in the private sector soared during 2016-2017. The bad news is that the percentage of […]

State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113;  case activity (including briefs)

Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?

State v. August D. Genz, 2016AP2475-CR, District 3, 1/30/18 (not recommended for publication); case activity (including briefs)

A jury convicted Genz of (1) possession with intent to deliver amphetamine and (2) conspiracy to deliver THC. The court imposed concurrent, stayed sentences with 1 year of probation. Genz appealed the 2nd conviction, but he completed his term of probation while the appeal was pending. The State moved to dismiss on grounds of mootness. The court of appeals said, essentially, no way. The appeal was not moot because a felony conviction has collateral consequences. Furthermore, the State did not offer sufficient evidence to prove conspiracy to deliver THC.  Conviction reversed!

State v. Morris Rash, 2016AP2494-CR, District 1, 1/30/18 (not recommended for publication); case activity (including briefs)

Morris Rash was convicted of substantial battery and being a felon in possession of a firearm after a jury trial. When it came time for postconviction proceedings and/or an appeal, it turned out that some photographs used as exhibits at the trial were not in the court record.

Who would’ve thunk? This is the subject of a hot new paper on the Social Science Research Network.  You can read it here.

This new paper examines data from over 1 million criminal cases in an attempt to answer that question.

Who wants to preserve a really provocative issue at their next trial? The Unconstitutionality of Criminal Jury Selection, by Brittany Dietch, a Harvard Law fellow, argues that because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, […]

There seems to be a debate over this issue. If you practice juvenile law, you might was to weigh in here at the Cyntonia Brown and the “51 to life” project. Attorney Robert Donohoo already has.

State v. Anton R. Dorsey, 2018 WI 10, 1/25/28, affirming a per curiam court of appeals opinion, case activity (including briefs)

On Point has posted extensively about this case here regarding the court of appeals’ two opinions and here regarding Dorsey’s petition for review. This post focuses on the bottom line for trial lawyers because the majority opinion cements a change in Wisconsin law. Under common law, the “greater latitude rule” allows for the more liberal admission of “other acts” evidence in cases of sexual abuse particularly those involving children. Opinion ¶32. In 2013, the legislature amended §904.04(2)(b)1, and according to the majority, thereby extended this rule to a range of cases beyond child sexual abuse, including domestic abuse.  Specifically :