Category: Uncategorized

Alderman Law Firm Wins Appeal to Save Historic Monument

Last week, the Wisconsin Court of Appeals overturned a circuit court order that would have allowed demolition of the historic Sisters of Holy Nativity Convent.

On appeal, Attorney K.L. Penix argued the circuit court’s decision allowing for the demolition was erroneous because, in relevant part, the owner of the Convent attempted to comply with a raze or repair order issued by the City of Fond du Lac. If the City still intended to seek demolition of the building following the repairs, it should have sought a new raze or repair order.

This matter will resume in the circuit court, where the fate of the historic monument will be decided.

For the rest of the story, please see the FLD reporter at Fond du Lac Holy Nativity Convent: Appeals court upholds challenge (fdlreporter.com)

Attorney Penix Argues Before Colorado Court of Appeals

On April 3, 2018, managing attorney K.L. Penix argued before the Colorado Court of Appeals in Denver on behalf of Defendant-Appellant Craig Edward Nelson in The People of the State of Colorado v. Craig Edward Nelson. The primary issue in the case was whether the People shifted the burden of proof to Nelson by cross-examining him on whether he could prove his factual contentions, and arguing in closing that Nelson enjoyed “no special deference” at trial. Video of Attorney Penix’s oral argument is available here:

https://cojudicial.ompnetwork.org/shows/15ca1874?iframe_mode=true

The Colorado Court of Appeals has yet to issue a decision in the matter.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation.

What is a Colorado Direct Appeal?

In Colorado, a direct appeal is an appeal from a trial court decision, filed immediately following entry of judgment within the trial court. On direct appeal, Colorado appellants may only argue alleged legal errors made by the lower court. Commonly alleged trial court errors include the improper admission of evidence, an incorrect jury instruction, or a conviction based on insufficient evidence. Importantly, a defendant cannot argue that he received ineffective assistance of counsel in a direct appeal.

Generally, an appellant filing a direct appeal argues that, due to an error committed by the trial court, a particular judgment should be reversed. Even if the reviewing court finds error, however, reversal is not guaranteed. Most errors are reviewed for harmlessness, meaning that an error will only require reversal where there is a reasonable probability that the error had an impact on the outcome of the case.

Appellants must be aware that a “win” on direct appeal – reversal of a judgment – often results in a remand of the case to the trial level court where the case may be re-tried. This is an especially important consideration for criminal defendants, who may face new charges and longer sentences should a new conviction be entered on remand.

A losing party is only afforded one direct appeal. For example, a loss in the district court may be appealed once to the court of appeals. While it is true that a loss in the court of appeals may be appealed to the Colorado Supreme Court, the supreme court has discretion to decide whether or not it will hear your case.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Should My Trial Attorney Write My Appeal?

After going through the lengthy trial process, most litigants presume that their trial level attorney will handle the appeal. After all, who knows the case better than he or she does? In reality, however, most trial level attorneys will not handle appeals as a rule. Think of it this way: you wouldn’t seek out an appellate specialist to handle your case at the trial level, so why would you pursue an appeal with a trial specialist?

Your trial level attorney will still be an important part of your appeal. It is common practice for an appellate attorney to discuss a case with the trial level attorney in order to determine what he or she believes to be important issues for appeal. Moreover, the trial level attorney will be responsible for forwarding the case file to the appellate attorney.

Your appellate attorney will look at the case with an objective, fresh eye, and a working knowledge of effective appellate arguments. In some cases, the best post-conviction argument will be that the trial attorney made an error, rendering his or her assistance as ineffective. Although attorney errors are common, it would be difficult for an attorney to argue that his or her own performance was deficient.

Moreover, appellate practice requires careful attention to appellate rules and procedures. Appellate specialists have a solid working knowledge of these rules and procedures because they work with them daily. Therefore, it takes them less time to draft compliant appellate documents. While a trial attorney can certainly look up and follow appropriate rules and procedures, there is no substitute for experience.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Attorney Penix Argues Before the Seventh Circuit

On January 19, 2017, managing attorney K.L. Penix argued before the Seventh Circuit Court of Appeals in Chicago on behalf of plaintiff-appellant in Sabina Burton v. Board of Regents of the University of Wisconsin System, et. al. The primary issue in the case was whether Burton was entitled to relief under Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. While there is no video of the case, the audio is available here:

http://media.ca7.uscourts.gov/sound/2017/ab.16-2982.16-2982_01_19_2017.mp3

On March 17, 2017, the Court of Appeals entered a decision affirming the judgment of the district court.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation.

Weighing the Risks of Requesting a New Trial

A motion for a new trial is a common post-conviction motion that asks a reviewing court to overturn a judge’s order or a jury’s verdict, thereby putting the defendant in the position he was in prior to the start of trial.

In Wisconsin, the availability of a new trial is governed by Wis. Stat. §805.15, which provides that an individual may request a new trial where:

• There were errors in the trial
• The verdict is contrary to law or to the weight of evidence
• There were excessive or inadequate damages
• There is newly-discovered evidence
• The interests of justice require a new trial

Wis. Stat. §805.15(1). In Colorado, motions for a new trial are governed under Colo. Crim. P. 33. This statute allows an individual to request a new trial where:

• The interests of justice require a new trial
• There is newly-discovered evidence

A motion for a new trial based on the interests of justice must be filed within 14 days following the verdict. Colo. Crim. P. 33(c). A motion for a new trial based on newly discovered evidence must be filed as soon as the new evidence becomes known to the defendant. Colo. Crim. P. 33(c).

Before requesting a new trial, the defendant must consider the potential risks. For example, a defendant could be convicted of the same crimes and receive a greater sentence. Additionally, if there is sufficient evidence to add additional charges before the second trial, the State may do so. Therefore, it is very important to review the potential risks of requesting a new trial before motioning for one.

To speak with a knowledgeable attorney about the possibility of a new trial in your case, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

But What do I Win? Remedies on Appeal in Criminal Cases

In the majority of criminal cases, a successful appeal or post-conviction motion is not the end of a criminal case. In fact, most post-conviction motions and appeals request specific relief that prolongs the case further, such as a new trial, a new sentencing hearing, or the withdrawal of a plea and the opportunity to go to trial. Following is a discussion of some potential outcomes of a successful post-conviction motion or appeal.

New Trial

If the reviewing court orders a new trial, the defendant is put in the same position he was in prior to the start of the original trial. The State may attempt to negotiate a plea bargain to avoid a second trial, however it is not required to do so. When requesting a new trial, it is important for the defendant to consider that vacated charges will be reinstated. Further, there is a possibility that he will receive the same convictions – or more – and/or a harsher sentence (assuming he did not receive a maximum sentence on all charged counts in the initial trial).

Re-Sentencing

If the reviewing court affirms a conviction but finds issue with the sentence, it may vacate the sentence and order re-sentencing. This can happen in a variety of situations, such as where the reviewing court determines that a sentence is unreasonable, the sentencing court considered incorrect information, or where the sentence falls outside of statutory sentencing guidelines. An order for re-sentencing puts the defendant back in the position he was in immediately following the criminal conviction, so the defendant can receive any sentence authorized by law.

Vacating the Plea

Where a defendant is successful in arguing that he should be permitted to withdraw his plea, the reviewing court can order that the plea be vacated. This puts the defendant in the same position he was in prior to accepting the plea. As with an order for a new trial, the State may attempt to negotiate a plea bargain, but is not required to do so. If a new plea bargain is not reached, the case will proceed to trial. As with a new trial or re-sentencing, the defendant can receive any sentence which was authorized by law at the point before the plea was entered.

While these are common remedies after a successful post-conviction motion or appeal, they are not the only remedies available.  To speak with a knowledgeable attorney about your post-conviction options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Can my Criminal Record be Expunged?

Why Expungement?

Due to the public nature of most criminal court records, a single bad decision can result in a permanent, detrimental mark on a person’s record. Some states make these records more readily available than others. For example, individuals can search and view Wisconsin criminal records online, for free, through “Wisconsin Court System Circuit Court Access.” Colorado does not have a similar free database, however interested persons can search Colorado records online through paid vendors. In any state, individuals can also go to the clerk of court and request to view or copy a criminal record.

What is Expungement?

Due the detrimental nature of having a public criminal record, most States offer a procedure for having certain records expunged. Through engagement, a criminal case file is sealed, and cannot be viewed without a court order.

Am I Eligible for Expungement?

Wisconsin law allows expungement in two main situations:

1) Youthful offenders – Wis. Stat. §973.015

At the time of sentencing, a court may order that a record be expunged upon successful completion of the sentence where: (1) the offender is under the age of 25 at the time of the commission of the offense, (2) the offense carries a maximum imprisonment of 6 years or less, and (3) the court determines that the offender will benefit and society will not be harmed by the expungement.

If the offender was placed on probation or sentenced to serve jail or prison time, the clerk will automatically have the record expunged following successful completion of the sentence. Conversely, if the offender was only sentenced to pay a fine or restitution, the offender must request expumgement, upon successful completion of the sentence, using form CR-266.

2) Juvenile offenders under age 17 – Wis. Stat. §938.355(4m)

Upon turning 17, an offender who has been adjudged delinquent as a juvenile may petition the court for expungement of the juvenile adjudication where: (1)  he has complied with the conditions of the dispositional order, and (2) the court determines that the juvenile will benefit from, and society will not be harmed by, the expungement.

To request expungement under this circumstance, an individual must file form JD-1780.

The court may also expunge a criminal record where an offender committed a commercial sex act as a victim of human trafficking under Wis. Stat. §973.015(2m). Beyond thee three situations, a judge has no authority to expunge any other type of record.

Colorado law only allows expungement in two circumstances:

1) Juvenile records (Under the age of 18) – §19-1-306, C.R.S.

Juvenile records may be expunged unless: (1) the offender committed an offense involving unlawful sexual behavior, (2) the offender was adjudicated as an aggravated or violent juvenile offender, (3) the offender received an adult sentence, or (4) the offender failed to pay restitution stemming from a juvenile conviction.

If these circumstances are not present, a juvenile offender may request to have his record expunged by filing a Petition for Expungement of Record, form JDF-302, available here. Depending on the case, the offender may be able to file the petition immediately, or may have to wait up to five years. To determine when a petition can be filed in your case, review form JDF-301, available here.

2) Underage Drinking and Driving – §42-4-1715, C.R.S.

Underage drinking and driving records may be expunged where the offender: (1) had a BAC between 0.02 and 0.05, (2) is over age 21 at the time of the expungement request, (3) has not been convicted for any other DUI offense while under the age of 21, (4) has paid any fines and has completed any requirements of his conviction, (5) has never held a commercial driver’s license, and (6) was not operating a commercial motor vehicle at the time he committed the offense.

An eligible offender may request expungement by filing form JDF-305, available here.

If your conviction does not qualify for expungement, you may have the option of requesting that your case be sealed. To speak with a knowledgeable attorney about your expungement options, contact the Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is Original Jurisdiction?

In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:

(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;

(2) Actions between the United States and a State;

(3) Actions by a State against the citizens of another State

Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.

It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is E-Filing?

Many courts have instituted an electronic system for briefs and other documents. While these courts still require paper copies of most briefs, they require an additional, electronic copy to be filed through their Web site.

In Wisconsin, for example, attorneys are required to file an electronic copy of briefs in the court of appeals and supreme court, but not in the circuit courts. Unrepresented litigants may electronically file their briefs as well, but are not required to do so.  To determine whether your case requires electronic filing, check the local court Web site, or call the clerk of courts.

The electronic filing web page for your local court will provide instructions for how to electronically file a document in your jurisdiction. Typically, this involves uploading a PDF copy of the brief, minus any appendix. Most courts require that the brief be e-filed on the same day that the physical copies are filed.

To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).