On Point

State v. Carl L. Dowdy, 2012 WI 12, affirming 2010 WI App 58; for Dowdy: Bryan J. Cahill; Amicus: Dustin Haskell (SPD), Robert Henak (WACDL); case activity

¶4   We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation.  Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to “extend probation for a stated period”

State v. Marquis O., 2011AP2642, District 1, 2/14/12

court of appeals decision (1-judge, not for publication); for Marquis O.: Carl W. Chessir; case activity

Grounds for terminating parental rights upheld, against argument that Bureau of Child Welfare didn’t make reasonable effort to provide services for Marquis O. to meet conditions for child’s return to him.

¶5        The termination of Marquis O.’s parental rights to Mariyana was based on the child’s having,

seventh circuit decision

Habeas – Knowing Use of False Testimony (“Napue”) 

Due process prohibits knowing prosecutorial use of false testimony, Napue v. Illinois, 360 U.S. 264, 269 (1959). However, the prosecutor’s exploitation of Bland’s incorrect testimony on a potentially important point (the date his gun was confiscated) doesn’t support habeas relief on a Napue-type theory.

Napue and Giglio hold that a prosecutor may not offer testimony that the prosecutor knows to be false.

court of appeals certification; for Taylor: Shelley Fite, SPD, Madison Appellate; case activity; review granted, 3/15/12

Guilty Pleas – Plea Colloquy 

Certified Issue: 

Whether a plea colloquy’s understating the potential penalty is subject to harmless error analysis, such that if the subsequently-imposed sentence doesn’t exceed the misadvised maximum, plea-withdrawal isn’t supported.

The details: Taylor was charged as a repeater with an offense carrying an underlying maximum of 6 years with the enhancer adding a potential 2 years.

Marilyn Mulero v. Thompson, 7th Cir No. 10-3875, 2/7/12

seventh circuit decision

Habeas – Procedural Bar 

Muleros’ failure to present various claims “through one complete round of state court review” operates as procedural default; citing, Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

… While Mulero did present numerous other claims of ineffective assistance of counsel to the Illinois state trial court and in her petition for review to the Illinois Supreme Court,

State v. Michael A. Imbruglia, 2011AP1373-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); for Imbruglia: Rick Ramirez; case activity

In circuit court, Imbruglia successfully challenged use of a Colorado conviction as an OWI enhancer (on the ground that statute isn’t “substantially similar” to Wisconsin’s). However, after another OWI arrest the very next day, the State reasserted that same conviction to enhance the new charge.

State v. James M. Johnson, 2011AP2374-CR, District 2, 2/8/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Evidence – Johnson left voicemail message on complainant’s work phone – held sufficient to sustain conviction for violating temporary restraining order.

¶8        Regarding the nature of the voice mail message and its violation of the TRO, the TRO itself states that Johnson is to “avoid contact that harasses or intimidates the petitioner,” contact defined as including contact by phone.  

State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12

court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity

Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.

Chippewa County Dept. of Human Services v. James A., 2011AP2613, District 3, 2/7/12

court of appeals decision (1-judge, not for publication); for James A.: Susan E. Alesia, SPD, Madison Appellate; case activity

¶18      James does not allege Wis. Stat. § 48.415(6) implicates a First Amendment right.  Therefore, the threshold question is whether James’ conduct plainly falls within the statute’s proscriptions.  If it does, he is precluded from challenging the statute on vagueness grounds. 

7th circuit decision, imposing discipline 

Sanctions – Abandonment of Client 

It is apparent from this final motion for additional time that Boyle-Saxton elected to put work for other clients ahead of her obligations to Rodriguez and this court. That is unprofessional; lawyers have an ethical obligation to take no more work than they can perform. …

…

She is unfit to practice law in this court.