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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.
Writs – Certiorari – Judicial Act – Review Limited to Determining Tribunal’s Jurisdiction
State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶8. … The State contends, however, that reconfinement orders may only be reviewed via common-law certiorari and not under Wis. Stat. Rule 809.30. It relies on State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995) (per curiam).…
¶10.
Writs – Supervisory – General
State ex rel Ralph A. Kalal v. Circuit Court for Dane County, 2004 WI 58
For Kalal: Waring R. Fincke
Issue/Holding:
¶17 A “writ of supervision is not a substitute for an appeal.” State ex rel. Dressler v. Circuit Court for Racine County, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991). The decision whether to issue a supervisory writ “is controlled by equitable principles and,
Sentencing Review – Factors – TIS, Generally
State v. Wallace I. Stenzel, 2004 WI App 181
For Stenzel: Martin E. Kohler
Issue/Holding:
¶6. In State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Wisconsin Supreme Court revisited the seminal case in sentencing jurisprudence, McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971) …¶7. The appellate standard of review is limited to determining if the sentencing court erroneously exercised its sentencing discretion.
Sentencing Review – Factors – Proof: Prior Acquittal
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶54. It is “‘well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted.’” United States v. Watts, 519 U.S. 148, 152 (1997) (per curiam) (quoted source omitted,
Sentencing Review – Factors – Articulation of Reasons for Sentence – Truth-in-Sentencing
State v. Curtis E. Gallion, 2004 WI 42, affirming 2002 WI App 265
For Gallion: Randall E. Paulson, SPD, Milwaukee App
Amici: Robert R. Henak, WACDL; Walter J. Dickey, et al., UW Law School
Issue/Holding: (The singular importance of this case requires this very lengthy excerpt, albeit without the footnotes which don’t seem to add substantive content.)
¶38. In light of the increased responsibility placed upon the sentencing court,
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds
State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92,
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony from Prior Trial in Different Case
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo’s testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been “required” to admit his prior testimony because the other-acts evidence placed him in the “constitutionally untenable”
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony: Waiver of and Revocation of Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo’s attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed,
Counsel – Ineffective Assistance – Deficient Performance: Failure to File Suppression Motion
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding: Counsel was not ineffective for failing to file a suppression motion based on his assessment that the arrest was supported by probable cause; “the highly incriminating evidence against Cash known” to the authorities before the arrest in fact supported probable cause, ¶¶24-25.
What if there had been an arguable basis for the suppression and no non-tactical basis for failing to file it?
Counsel – Ineffective Assistance – Deficient Performance: Failure to Research Applicable Law and Object to Inadmissible Evidence (PSR)
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient:
¶23. While Swierenga’s testimony was admissible, Geske’s was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis.
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