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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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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 […]
Right to Retained Postconviction Counsel of Choice – Based on 6th Amendment
State v. Todd E. Peterson, 2008 WI App 140 For Peterson: Ralph Sczygelski Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice: ¶9 The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. … ¶10 […]
Defenses – Statute of Limitations, § 939.74 – Tolling: Procedure for Determining
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification For MacArthur: Alex Flynn Amicus: Robert R. Henak Issue/Holding: ¶50 Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at […]
OWI – Sufficiency of Evidence: “Operated” Vehicle on “Highway”
State v. Michael G. Mertes, 2008 WI App 179, PFR filed 12/17/08 For Mertes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate Issue: Whether finding the sleeping occupant of a vehicle parked at a gas station, with engine off but key in the ignition, along with other factors sufficiently proved the OWI element of “operating.” Holding: ¶13 Wisconsin Stat. § 346.63(3)(b) […]
OWI — Gated Community Roadway, Open to Public Use, Support for Drunk Driving under § 346.61
State v. Thomas P. Tecza, 2008 WI App 79, PFR filed 5/22/08 For Tecza: Timothy P. Swatek Issue: Whether a roadway within a gated community entry to which is guarded by a security station is “held out to the public for use of their motor vehicles” so as to support drunk driving conviction within § 346.61. Holding: […]
Enhancer – Proof: Timing (“Post-Trial”)
State v. Shane P. Kashney, 2008 WI App 164 For Kashney: Paul G. LaZotte, SPD, Madison Appellate Issue/Holding: While State v. Patrick A. Saunders, 2002 WI 107 limits proof of a repeater enhancement to the “post-trial” setting, that limitation is satisfied if the State submits the proof after verdict (and before the court has pronounced judgment). ¶1 […]
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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.