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On Point is a judicial analysis blog written by members of the Wisconsin State Public Defenders. It includes cases from the Wisconsin Court of Appeals, Supreme Court of Wisconsin, and the Supreme Court of the United States.
Court of Appeals Publication Orders, 12/10
court of appeals publication orders, 12/14/10
On Point posts from this list:
2010 WI App 160 Jefferson County v. Joseph S.
2010 WI App 161 State v. Raymond Allen Nickel
2010 WI App 162 State v. Scottie L. Baldwin
2010 WI App 163 State v. William Dinkins, Sr.
2010 WI App 166 State v.
Rogelio Promotor v. Pollard, 7th Cir No. 09-2292, 12/14/10
7th circuit decision, habeas review of summary order of Wisconsin court of appeals, No. 2004AP2242-CR
Habeas – Procedural Bar, Sentencing Objection
Pomotor’s failure to object to information (the number of beers he allegedly consumed) in his alternative presentence report, worked a procedural default to his susbequent challenge to the sentencing court’s reliance on that information
Promotor accurately argues that a procedural defaultdoes not bar consideration of a federal claim unless the procedure is a “firmly established and regularly followed state practice.” Smith v.
Miranda – Custody; Lesser Included Offense Instruction
State v. Tony Lamont Jackson, 2010AP351-CR, District 1, 12/14/10
court of appeals decision (3-judge, not recommended for publication); for Jackson: Hans P. Koesser; Jackson BiC; State Resp.; Reply
Miranda – Custody
Initially treated at the scene of a shooting by the police as a witness rather than suspect, Jackson voluntarily accompanied the police to the station to continue providing information,
TPR – Default as Sanction; Formal Advice as to Rights – Harmless Error
State v. Marquita R., 2010AP1981, District 1, 12/14/10
court of appeals decision (1-judge, not for publication); for Marquita R.: Carl W. Chesshir
TPR – Default as Sanction
Delay of over two-and-one-half years between petition and fact-finding hearing (despite statutorily mandated schedule of 45-day limit, § 48.422(2)), caused by Marquita R.’s “egregious” and “bath faith” conduct, intended to disrupt the TPR process, supported the trial court’s decision to find her in default as a sanction.Nor did the default ruling violate due process,
Sentencing – Inaccurate Information
State v. Jason C. Walker, 2010AP83-CR, District 3, 12/14/10
court of appeals decision; (3-judge, not recommended for publication); for Walker: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply; prior opinion withdrawn 12/2/10, prior summary, here
On sentencing after revocation, the trial judge relied on sexual assault allegations appearing in the revocation summary;
State v. Rickey R. Denson, 2009AP694-CR, review granted 12/8/10
decision below: summary order; for Denson: Donna Odrzywolski; supreme court news release
Issues (from the news release):
- Should the constitutional right of a criminal defendant not to testify on his behalf and remain silent at trial be recognized as a fundamental right that can only be waived personally by the defendant with an on the record colloquy?
- Should the only appropriate remedy, for failure to engage in an on-the-record colloquy regarding the right not to testify at trial,
Prison Discipline: Certiorari Review – Right to Exculpatory Material – Impartial Fact-Finder
Darnell Jackson v. Buchler, 2010 WI 135, affirming unpublished court of appeals decision; for Jackson: Michael Halfenger, et al.; Jackson BiC; Buchler Resp.; Reply; Jackson Br. after remand; Buchler Br. after remand
Certiorari Review – Prison Discipline
Evidence before disciplinary committee, in the form of statements of two confidential informants,
TPR – Right to Post-Disposition Visitation, Vacated Order and Right to Reinstated Visitation
State v. Lorraine J. / Johnny J., 2010AP137, et al,District 1, 12/8/10
court of appeals decision (1-judge, not for publication); for Lorraine J.: Melinda A. Swartz, SPD, Milwaukee Appellate; for Johnny J.: John J. Grau
TPR – Right to Post-Disposition Visitation
A termination order severs all parental rights, including visitation under § 48.43, ¶¶31-37.
TPR – Vacated Order and Right to Reinstated Visitation
Grant of a post-disposition motion,
Stanley Martin, Jr. v. Bartow, 7th Cir No. 09-2947, 12/9/10
7th circuit decision; habeas review of State v. Martin, No. 06AP2413
Habeas – Filing Deadline – SVP
Martin’s habeas challenge to denial of his ch. 980 petition for discharge isn’t time-barred by the fact he could have raised the same challenge to his original commitment. Discharge typically requires a new determination of whether the SVP’s condition has “changed,” but Martin’s discharge litigation instead turned on an “exceptional”
Consensual Entry of Residence
State v. Mark A. Miller, 2010AP352-CR, District 4, 12/9/10
court of appeals decision (1-judge, not for publication); for Miller: Bill Ginsberg; Miller BiC; State Resp.
The court concludes that Miller voluntarily consented to police entreaties over an 11-minute period to enter his home so that they could perform field sobriety testing, notwithstanding his refusals during that time to allow entry:
¶7 The circuit court found that the officer spoke with Miller for approximately eleven minutes and,
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