On Point

court of appeals decision (1-judge; not for publication); Susan E. Alesia, Madison Appellate Competency Circuit court erred in not granting request for competency hearing, based on some jibberjabber about the PD and cost; plus circuit court wrong to limit competency hearing to those few cases where person “doesn’t have a clue what’s going on.” (Snark: […]

decision below: 2009 WI App 156; for Carter: Craig M. Kuhary Issues: Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§ 346.63 and 346.65)? What methodology are trial courts to employ in determining whether to count out-of-state […]

7th Circuit decision Habeas – Procedural Bar … If a state court clearly and expressly states that its judgment rests on a state procedural bar and does not reach the merits of a federal claim, then we are unable to consider that claim on collateral review. Harris v. Reed, 489 U.S. 255, 263 (1989); Pole, 570 F.3d at 937. And […]

court of appeals decision (1-judge; not for publication); BIC; Resp. Br. Traffic Stop – Reasonable Suspicion Stop was supported by reasonable suspicion, given trial court findings that “Johnson’s vehicle crossed the fog line and drifted across the lane to the area of the center line, weaved from the right to the left while negotiating curves in […]

7th Circuit decision Terry Stop / Frisk 1. Pulling up in a patrol car and telling Gentry to keep his hands up amounted to a stop for purposes of Terry analysis. 2. The stop, which was based on a report of a “suspicious person,” without reference to any specific facts concerning a crime, was not […]

court of appeals decision (3-judge; not recommended for publication); Resp. Br; Reply Br Exculpatory Material Defense had access to assertedly suppressed exculpatory material, hence no Brady violation. Effective Assistance Counsel had valid tactical reason for cross-examination approach; failure to file discovery demand, object to certain testimony: “The defendant must affirmatively prove prejudice. … Walker has not even attempted […]

court of appeals decision (3-judge; not recommended for publication) Machner Hearing Postconviction motion conclusory, didn’t require Machner hearing on effective assistance. Recusal Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias. Sentencing Sentence taking into account primary factors and much less than maximum […]

State v. Thomas H.L. Barfell, 2010 WI App 61; for Barfell: Roberta A. Heckes; BiC; Resp. Br.; Reply Br.; App. Supp. Br.; Resp. Supp. Br. Sentencing – Guidelines, General Purpose ¶7        While Barfell is correct that he “has a due process right ‘to be sentenced on the basis of true and correct information’ pertaining to ‘the offense and the circumstances of its […]

USSC decision Armed Career Criminal Act State conviction for battery, which requires only intentional physical contact no matter how slight, doesn’t qualify as “violent” under federal Armed Career Criminal Act, 18 U. S. C. §922(g)(1). There appears to be no Wisconsin equivalent to the ACCA, which severely limits the utility of this case for state practice.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Traffic Stop – Reasonable Suspicion – § 346.072(1) “We are satisfied that a reasonable officer could reasonably suspect that, by driving 28 to 30 miles per hour in a 25-mile-per-hour zone within 2 to 3 feet of the squad cars, Statz did not slow down, maintain a […]