On Point

State v. Patrick Kozel, 2017 WI 3, reversing an unpublished court of appeals decision,  2016AP656-CR, 1/12/16; case activity (including briefs)

Kozel, arrested for OWI-2^nd and subjected to a blood draw by an Emergency Medical Technician (EMT) at a county jail, challenged the draw as violating §343.305(5)(b) (2011-12) and as unconstitutional, because  it was not performed  “by a physician in a hospital environment according to accepted medical practices.” ¶43, citing to Schmerber v. California, 384 U.S. 757, 771 (1966).

State v. C.M., 2016AP1321, 1/18/17, District 2 (one-judge decision; ineligible for publication); case activity

After charging J.M. in juvenile court with crimes ranging from child sexual assault to disorderly conduct, the State sought to waive J.M. into adult court by arguing that Lincoln Hills was not an appropriate place for C.M. because, according to the recent news reports, it is so awful. The circuit court cited the news reports in granting waiver. That was error, but it’s harmless because there are other facts in the record supporting the waiver decision.

Petition for review of State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, granted 1/18/2017; case activity (including briefs)

Issue presented (from the State’s petition for review):

Now that criminal defense attorneys are obligated to advise their clients about the immigration consequences of their pleas, Padilla v. Kentucky, 559 U.S. 356 (2010), should the Wisconsin Supreme Court overturn its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the harmless error rule to prohibit a defendant who was aware of the potential immigration consequences of his plea from being able to withdraw the plea just because the circuit court failed to give a statutory immigration warning that complied with Wis. Stat. § 971.08(1)(c)?

State v. Christopher J. McMahon, 2015AP2632-CR, District 3, 1/18/17 (one-judge decision; ineligible for publication); case activity (including briefs)

McMahon’s trial attorney wasn’t ineffective for failing to shield McMahon and another defense witness from impeachment using a prior conviction.

State v. L. H.-H., 2016AP917, 1/18/17, District 1 (1-judge decision; ineligible for publication); case activity

L.H.H. seeks to withdraw his plea to the single T.P.R. ground of failure to assume parental responsibility. He contends he did not understand that a plea would result in a finding that he was an unfit parent; the court of appeals upholds the circuit court’s finding that he did.

Question presented:

Whether, when this court held in Ake v. Oklahoma, 470 U.S. 68 (1985), that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.

Question presented:

Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

Question presented:

Whether the rule established in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.

Question presented:

Whether the U.S. Court of Appeals for the Sixth Circuit erred by holding, in direct conflict with the Courts of Appeals for the First, Fourth, Seventh, and Ninth Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

State v. Jimmie C. Johnson, 2015AP1233-CR, 2015AP2260-CR, 1/11/17, District 1 (not recommended for publication); case activity (including briefs)

When J.T. stepped out of her car in the parking lot of the West Allis Chuck E. Cheese she spotted a purple “Crown Royal” bag outside the driver’s door of the Chevy Tahoe next to her. It contained 69 aluminum foil folds. She took a photo of the license plate, went into the Chuck E. Cheese where she watched man get into the Tahoe, drive off, turn around, return to the parking spot and search for something. He then when into the Pet World next door where a video camera captured him searching for something.