On Point

State v. Andrew M. Obriecht, 2010AP1469, District 4, 10/28/10

court of appeals decision (1-judge, not for publication); pro se

Following earlier unsuccessful challenges to his plea-based conviction via direct appeal and habeas, Obriecht utilizes coram nobis as an attack mechanism. He argues that his plea wasn’t knowing, and that requiring a plea as a precondition to participation in the First Offender Program violated due process. The court rejects the arguments because they don’t relate to factual error unknown at the time,

court of appeals publication orders, 10/27/10

On Point posts from this list:

2010 WI App 137 State v. Drew E. Bergwin

2010 WI App 142 Hakim Naseer v. Circuit Court for Grant County

State v. Ricardo Lopez, 2010 WI App 153 (recommended for publication); for Lopez: Catherine M. Canright; BiC; Resp.; Reply

The plea colloquy was deficient with respect to Lopez’s understanding of the rights waived by his no contest plea, therefore in response to his postconviction motion to withdraw plea the trial court held a hearing at which the State bore the burden of proving his understanding.

Voluntariness – Statements to Probation Officer

court of appeals decision (3-judge, not recommended for publication), supreme court review granted 11/14/12; for Sahs: Mark S. Rosen; BiC; Resp.

Sahs’ claim that his statements to his probation officer were given under compulsion is rejected, because the premise for the claim – a DOC form cautioning that he must reveal his activities else face probation revocation –

State v. Michael A. Barahona, 2010AP1324, District 4, 10/21/10

court of appeals decision (1-judge, not for publication); for Barahona: Walter A. Piel, Jr.; BiC; Resp.; Reply

¶14      The undisputed facts as disclosed from the record reveal the following:  (1) Marks observed Barahona’s vehicle driving in the wrong direction in the eastbound lane of Campus Drive; (2) Marks observed Barahona’s vehicle cross the dotted line dividing two lanes of traffic by approximately one foot and drive over that line for approximately one block when he was pulled over by Marks;

State v. Carl L. Dowdy, 2010 WI App 58, review granted, 3/16/11; for Dowdy: Bryan Cahill; BiC; Resp.; Reply

Judges lack statutory authority to reduce the length of probation.

¶16      We conclude that we do not have cause to refer to legislative history or other extrinsic tools, because the plain language of Wis.

State v. Ronnie L. Peebles, 2010 WI App 156 (recommended for publication); for Peebles: Suzanne L. Hagopian, SPD, Madison Appellate; BiC; Resp.; Reply

Use, at Peebles’ sentencing after revocation, of his incriminating statements made during counseling ordered as a condition of probation, violated the 5th amendment and requires resentencing. The court canvasses the leading cases – State v.

Barron County v. Dennis H., 2010AP1026, District 3, 10/19/10

court of appeals decision (1-judge, not for publication); for Dennis H.: Jefren E. Olsen, SPD, Madison Appellate

Evidence held sufficient to support finding of dangerousness.

1) Recent overt act, attempt or threat to do serious physical harm. A psychologist testified that Dennis at times displayed aggressive behavior (“he changes at the snap of the finger and will become highly excitable,

State v. Darrell K., 2010AP1910, District 1, 10/19/10

court of appeals decision (1-judge, not for publication); for Darrell K.: Jereny C. Perri, SPD, Milwaukee

Darrell’s right to counsel was violated when the trial court granted counsel’s motion to withdraw then found Darrell in default as to grounds while he was unrepresented. State v. Shirley E., 2006 WI 129, followed.

¶10      The Wisconsin Supreme Court ruled that the trial court erred in dismissing Shirley’s attorney and in finding Shirley in default when she was unrepresented throughout the hearings.  

7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals

Habeas – Procedural Default & No-Merit Report

Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.