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Tag Archives: Criminal Procedure Digest

2009AP2833-CR State v. Harris

Criminal Procedure Jury instructions; ineffective assistance; judicial recusal Morris L. Harris appeals the judgment entered after a jury found him guilty of battery to a domestic-abuse-injunction petitioner, see Wis. Stat. §§ 940.20(1m)(a) & 813.12, and substantial battery with intent to cause bodily harm, see Wis. Stat. § 940.19(2), both while armed and as an habitual criminal, see Wis. Stat. §§ ...

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2009AP2171-CR State v. Anthony

Criminal Procedure Plea withdrawal John M. Anthony, pro se, appeals from a judgment, entered after he pled no contest to second-degree reckless homicide while armed and second-degree recklessly endangering safety, and from an order denying his postconviction motion to withdraw his pleas. For the reasons which follow, we affirm the circuit court. Not recommended for publication in the official reports. ...

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10-C-553 Fischer v. Ozaukee County Circuit Court

Criminal Procedure Right to present defense; PBTs Wisconsin’s ban on defendants using preliminary breath tests, sec. 343.303, violates the right to present a defense. “On one side of the balance is the defendant’s interest, which is undisputedly strong. The defendant sought to utilize the PBT results as one aspect of an expert’s conclusion, which, if believed, would mean that the ...

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10-C-553 Fischer v. Ozaukee County Circuit Court

Criminal Procedure Right to present defense; PBTs Wisconsin’s ban on defendants using preliminary breath tests, sec. 343.303, violates the right to present a defense. “On one side of the balance is the defendant’s interest, which is undisputedly strong. The defendant sought to utilize the PBT results as one aspect of an expert’s conclusion, which, if believed, would mean that the ...

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2009AP2773-CR State v. Perez

Criminal Procedure Ineffective assistance Gilbert Perez appeals a judgment convicting him of repeated sexual assault of a child and an order denying his motion for postconviction relief. Perez argues he was denied the effective assistance of counsel. We disagree and affirm. This opinion will not be published. 2009AP2773-CR State v. Perez Dist III, Brown County, Hammer, J., Per Curiam Attorneys: ...

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2009AP2085-CR State v. Ward

Criminal Procedure Hearing impaired jurors Precious M. Ward appeals from a judgment of conviction entered after a jury found him guilty of first-degree reckless homicide while armed and felon in possession of a firearm, contrary to Wis. Stat. §§ 940.02(1), 939.63, and 941.29(2) (2007-08). He also appeals from the trial court’s order denying his postconviction motion for a new trial. ...

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2008AP2739 State v. Conner

Criminal Procedure Plea withdrawal Arthur Conner appeals a circuit court order that denied his motion for postconviction relief from a criminal drug conviction. We withdrew a previously issued decision in this matter to allow supplemental briefing. We now affirm. This opinion will not be published. 2008AP2739 State v. Conner Dist IV, Rock County, Bates, J., Per Curiam Attorneys: For Appellant: ...

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2009AP2552-CR State v. Janiak

Criminal Procedure Warrantless home entry; probable cause; hot pursuit Todd Janiak appeals a judgment of conviction for burglary and second-degree recklessly endangering safety. Janiak argues the circuit court should have suppressed evidence because police entered his home and arrested him without probable cause or exigent circumstances. We reject Janiak’s arguments and affirm. This opinion will not be published. 2009AP2552-CR State ...

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2009AP1775-CR, 2009AP1776-CR State v. Cooper

Criminal Procedure Joinder; relevant evidence In separate Criminal Complaints, the State charged Donald Lee Cooper with the first-degree intentional homicide of Eugene Chaney, as party to a crime, and with the kidnapping and aggravated battery of Leoporium Ford, as party to a crime. The latter Complaint also charged Cooper with possession of cocaine, more than forty grams, with intent to ...

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08-2267 U.S. v Orr

Criminal Procedure Entrapment Where the defendant made the initial suggestion to commit a crime, and bragged about other crimes he’d committed, he was not entrapped by the government. “Here, all factors indicate that Orr was predisposed to commit the charged offense. As noted earlier, Orr was the one that first suggested training Spaden’s daughters, and he encouraged Spaden to acclimate ...

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2009AP1781-CR, 2009AP1782-CR, 2009AP1783-CR State v. Leach

Criminal Procedure Ineffective assistance Gecobea M. Leach appeals the judgments of conviction after revocation of probation and the order denying his motion for resentencing. Leach argues that he received ineffective assistance of counsel when he was sentenced after revocation; there are new factors warranting sentence modification; the imposition of consecutive sentences was excessive and violated double jeopardy; the court did ...

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2009AP1963-CR State v. Semlar

Criminal Procedure Ineffective assistance Monte Semlar appeals from a judgment convicting him of four counts of sexual assault and a drug charge, and from an order denying his motion for postconviction relief. The issues on appeal are whether: (1) trial counsel provided ineffective assistance by failing to explore redacted portions of the victim’s medical records; (2) the State failed to ...

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2009AP2633-CR State v. Stoner

Criminal Procedure Reopen and amend provisions This appeal is about a “reopen-and-amend” provision of a plea agreement, a phrase coined by prior Wisconsin case law referring to those plea bargains where the State and defendant agree that a judgment of conviction, once announced, will be amended by the State upon the happening of some future event. Prior decisions of our ...

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2009AP1657 State v. Howard

Criminal Procedure Successive appeals Michael Howard, pro se, appeals an order denying his motion to cure an excessive sentence. Howard argues his sentence exceeds the maximum penalty authorized by statute. We affirm. This opinion will not be published. 2009AP1657 State v. Howard Dist III, Brown County, Bischel, J., Per Curiam Attorneys: For Appellant: Howard, Michael F., pro se; For Respondent: ...

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2009AP1974-CR State v. Bogan

Criminal Procedure Ineffective assistance Franklin Chaneal Bogan appeals from judgments of conviction, entered upon a jury’s verdicts, and an order denying his motion for postconviction relief without a hearing. Bogan asserts that trial counsel was ineffective for failing to call two witnesses to testify at Bogan’s bail jumping trial. We conclude that, even assuming that the allegations in Bogan’s postconviction ...

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2009AP2559 State v. Riley

Criminal Procedure Ineffective assistance Marcus Riley, pro se, appeals from the denial of his postconviction motion alleging ineffective assistance of counsel. We reject Riley’s arguments and affirm. This opinion will not be published. 2009AP2559 State v. Riley Dist III, Outagamie County, Dyer, J., Per Curiam Attorneys: For Appellant: Riley, Marcus L., pro se; For Respondent: Pray, Eileen W., Madison; Schneider, ...

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2009AP2422-CR State v. Domke

Criminal Procedure Ineffective assistance David Domke appeals a judgment convicting him of repeated sexual assault of his step-daughter, Alicia. He also appeals an order denying his postconviction motion in which he alleged ineffective assistance of trial counsel, Terrance Woods. Because we conclude Woods performed deficiently in two respects,[1] the cumulative effect of which undermines our confidence in the outcome of ...

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2009AP2559 State v. Riley

Criminal Procedure Ineffective assistance Marcus Riley, pro se, appeals from the denial of his postconviction motion alleging ineffective assistance of counsel. We reject Riley’s arguments and affirm. This opinion will not be published. 2009AP2559 State v. Riley Dist III, Outagamie County, Dyer, J., Per Curiam Attorneys: For Appellant: Riley, Marcus L., pro se; For Respondent: Pray, Eileen W., Madison; Schneider, ...

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08-2512 & 08-2443 U.S. v. Ellis

Criminal Procedure Double jeopardy Where a defendant never relinquished constructive possession of a firearm, it violated double jeopardy to convict him of two counts of being a felon in possession of a firearm. “[I]t is undisputed that Ellis relinquished actual possession of the second gun after he acquired it from the straw purchaser in June 2005; the important question for ...

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2010AP152 State v. Obriecht

Criminal Procedure Successive appeals Andrew Obriecht appeals a circuit court order that denied reconsideration on a motion for postconviction relief and sentence modification. We affirm. This opinion will not be published. 2010AP152 State v. Obriecht Dist IV, Dane County, Markson, J., Per Curiam Attorneys: For Appellant: Obriecht, Andrew M., pro se; For Respondent: Kaiser, Robert J., Jr., Madison; Lloyd, Katherine ...

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