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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.
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Sentencing – Review – Articulation of Factors – Ruminations about Defendant’s Mental Health
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: The sentencing court’s observations to the effect that the defendant was “a sick man” didn’t amount to “unsupported findings about his mental health: ¶14 At Sherman’s postconviction hearing, the court indicated that its comments did not reflect medical diagnoses, […]
Sentencing – Review – Articulation of Factors – Consideration of Sentences in Other, Similar Cases (Individualized Sentencing)
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: ¶15 Sherman claims the only evidence about his mental health came from his expert, Dr. Gerald Wellens. Sherman claims the court failed to consider his expert’s opinion. However, at sentencing, the court expressly considered Wellens’ opinion. The court noted […]
Sentencing Guidelines – Failure to Consider – Harmless, Where Sentence Concurrent to Other, Unchallenged Sentence
State v. Stephen C. Sherman, 2008 WI App 57, PFR filed 4/16/08 For Sherman: John J. Grau Issue/Holding: Sentencing failure to consider applicable guidelines, § 973.017(2)(a), was harmless error, at least where the controlling sentence was untainted by the error: ¶9 We conclude that the circuit court’s failure to consider the sentencing guidelines for the two Wis. Stat. […]
Confrontation – Forfeiture, pre-Giles (2008)
Go: here. Giles v. California, 554 U.S. 353 (2008) fundamentally altered the confrontation-forfeiture doctrine: There, the Court held in effect that the forfeiture doctrine “applie(s) only when the defendant engaged in conduct designed to prevent the witness from testifying,” although the Court also allowed that “(e)arlier abuse, or threats of abuse, intended to dissuade the […]
Confrontation – Expert Opinion Based on Hearsay
State v. Craig A. Swope, 2008 WI App 175 For Swope: Dianne M. Erickson Issue: Whether an FBI agent’s expert opinion, that the simultaneous deaths of an elderly couple were the result of homicide rather than natural causes, was improperly based on hearsay, namely the opinions of two non-testifying experts who thought the likelihood of […]
Counsel – Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel
State v. Todd E. Peterson, 2008 WI App 140 For Peterson: Ralph Sczygelski Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney: ¶21 Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk […]
Counsel – Ineffective Assistance – Deficient Performance – Closing Argument: Inconsistent Theories
State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08 For Westmoreland: Joseph E. Redding Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient. Holding: ¶20 We start […]
Counsel – Ineffective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions
State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient. Holding: ¶18 Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing […]
Counsel – Right to, Public Expense – Generally
State v. Alvernest Floyd Kennedy, 2008 WI App 186 Pro se Issue/Holding: ¶10 There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the […]
Retained Counsel, Choice of, Generally
State v. Todd E. Peterson, 2008 WI App 140 For Peterson: Ralph Sczygelski Issue/Holding: ¶7 … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the 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 […]
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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.