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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.
Sentencing Review – Factors – Proof: Prior Acquittal
State v. Anthony L. Prineas, 2009 WI App 28
For Prineas: Raymond M. Dall’osto, Kathryn A. Keppel
Issue/Holding: The sentencing court properly considered a count for which Prineas was acquitted, as well as uncharged, “sexually inappropriate behavior,” ¶28, citing State v. David Arredondo, 2004 WI App 7.
Sentencing Review – Factors – Seriousness of Offense – Weight Left to Trial Court
State v. Corey E. Young, 2009 WI App 22, PFR filed 1/7/09
For Young: Jeffrey W. Jensen
Issue/Holding: The trial court, in sentencing for first-degree intentional homicide, sufficiently explained why it was assigning extended supervision eligibility of 50 years’ confinement (rather than the 40 recommended by the State). Weight given each sentencing factor is committed to the trial court’s discretion, ¶24; the sentencing court in this instance reached its conclusion only after weighing a number of sentencing factors,
Counsel – Ineffective Assistance – Deficient Performance: Lack of Familiarity with Vienna Convention on Consular Relations
Johnbull K. Osagiede v. USA, 543 F.3d 399 (7th Cir 2009)
Issue/Holding: Counsel’s ignorance of rights available, under VCCR Art. 36, to her Nigerian national client was deficient:
Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v.
Substitution of (Retained Counsel), Contingent on Continuance
State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel
Issue/Holding: Trial court refusal to allow Prineas to substitute one retained counsel for another absent “an extraordinary reason,” where substitution would necessitate continuance of the scheduled trial over objection of the complainant and her family, upheld as proper exercise of discretion; Carlson v. Jess,
Choice of (Retained Counsel), Generally
State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09
Prineas: Raymond M. Dall’osto, Kathryn A. Keppel
Issue/Holding:
¶14 In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the U.S. Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id.
Defense of Self, § 939.48(1) – Violent Acts of Victim – Generally
State v. Jason L. McClaren, 2009 WI 60, reversing 2008 WI App 118
For McClaren: Michael C. Witt
Issue/Holding:
¶21 It is well established that a defendant seeking to support a self-defense claim may attempt to “prov[e] prior specific instances of violence within [the defendant’s] knowledge at the time of the incident.” State v. Wenger, 225 Wis.
Hit-and-Run – §§ 346.67(1) and 346.74(5)(b), Hit and Run Causing Personal injury – Felony Rather Than Misdemeanor
State v. Ross M. Brandt, 2009 WI App 115
For Brandt: John M. Yackel
Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony.
Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor,
Double Jeopardy – Multiplicity – § 940.02(2)(a) and § 948.40(4)(a): Not Multiplicitous
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.
Enhancer – Proof: Trial (on Guilt) – “Must be withheld from jury’s knowledge”
State v. Jeffrey A. Warbelton, 2009 WI 6, affirming 2008 WI App 42
For Warbelton: Paul G. LaZotte, SPD, Madison Appellate
Issue/Holding: Evidence related to a penalty enhancer (such as a prior conviction in support of habitual criminality) is relevant only to sentence and “must be withheld from the jury’s knowledge,” ¶19, quoting Mulkovich v. State, 73 Wis. 2d 464,
Double Jeopardy – Resentencing – No Presumption of Vindictiveness
State v. Charles Lamar, 2009 WI App 133, PFR filed 9/10/09
For Lamar: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding: No presumption of vindictiveness applied to resentencing by a different judge upon guilty pleas re-entered after the original trial court granted Lamar’s postconviction motion to withdraw the initial guilty pleas.
¶17 In Naydihor, our supreme court found that the Pearce presumption did not apply.
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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.