Explore in-depth analysis
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.
State v. Gerard W. Carter, 2008AP3144-CR, Wis SCt review, 3/9/10
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 OWI-related offenses for sentence enhancement purposes under Wis. Stat. § 343.307?
Doiakah Gray v. Hardy, 7th Circuit Appeal No. 07-3704, 3/12/2010
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 we have repeatedly explained that where a state court reviews the claim for plain error as the result of a state procedural bar such as the Illinois doctrine of waiver,
State v. David L. Johnson, District I, No. 2009AP1265-CR, 3/11/10
court of appeals decision (1-judge; not for publication); BIC; Resp.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 the road, moved close enough to the center line on a curve to cause concern that it might collide with an oncoming vehicle,
Kenneth E. Gentry v. Sevier, 7th Circuit App. No. 08-3574, 2/26/10
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 supported by reasonable suspicion to believe Gentry had either committed a crime or was armed.
State v. Clifford Dewayne Walker, 2008AP3180-CR, District I, 3/9/10
court of appeals decision (3-judge; not recommended for publication); Resp.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 to do so.
State v. Amonte Antoine Jackson, 2008AP3183-CR, District I, 3/9/2010
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 penalty not erroneous exercise of discretion.
Sentencing Guidelines: General Purpose – Retroactive Repeal, § 973.017(2)(a); Statutory Construction: § 990.04
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 commission … and the defendant’s personality,
Johnson v. U.S., USSC No. 08-6925
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.
State v. Shannon W. Statz, 2009AP2265-CR, District IV, 2/25/2010
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 safe speed for traffic conditions,
State v. Alexander Marinez, 2010 WI App 34
court of appeals decision; for Marinez: David Leeper; BiC; Resp. Br.; Reply Br.
Appellate Procedure – Waiver and Effective Assistance of Counsel
¶12 n. 12:
Although Marinez argues ineffective assistance of counsel, he also asks that we review his statutory and due process arguments directly. He cites to State v. Anderson, 2006 WI 77,
Important Posts
Ahead in SCOW
Sign up
On Point is sponsored by Wisconsin State Public Defenders. All content is subject to public disclosure. Comments are moderated. If you have questions about this blog, please email [email protected].
On Point provides information (not legal advice) about important developments in the law. Please note that this information may not be up to date. Viewing this blog does not create an attorney-client relationship with the Wisconsin State Public Defender. Readers should consult an attorney for their legal needs.