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PUBLISHED DECISIONS
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COMMENDATIONS
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Wisconsin Decisions - Robert R. Henak
Attorney Robert Henak has represented people charged with crimes on post-conviction motions throughout Wisconsin and on appeal in the Wisconsin Court of Appeals and Supreme Court, as well as in a number of federal district courts and circuit courts of appeals. To date, his cases have resulted in nearly 100 published decisions and a much larger number of unpublished decisions.
Attorney Henak did all or a significant part of the briefing for a party or amicus in each of the following Wisconsin published cases:
State ex rel. Kyles v. Pollard, 354 Wis.2d 626 847 N.W.2d 805, 2014 WI 38
Supreme Court holds that habeas petition in Court of Appeals was procedure for claim of ineffective assistance arising when counsel failed to file notice of intent to seek postconviction relief.
Opening Brief
Reply Brief
State v. Starks, 349 Wis.2d 274 833 N.W.2d 146, 2013 WI 69
Supreme Court holds (1) that ineffective assistance of post-conviction or appellate counsel limited to circumstances in which issue prior counsel failed to raise is "clearly stronger" than issues prior counsel raised, a holding that directly conflicts with the "reasonableness" standard for assessing deficient performance mandated by Strickland v. Washington, 466 U.S. 668 (1984), and (2) that claims that post-conviction counsel unreasonably failed to pursue a post-conviction motion in the circuit court must be raised via a habeas petition in the Court of Appeals, a sua sponte assertion that clearly conflicts with State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 556 N.W.2d 136 (Ct. App. 1996).
Reconsideration filed by both parties regarding second holding State v. Starks, 357 Wis.2d 142, 849 N.W.2d 724, 2014 WI 91 , but with Justice Prosser stating in a concurring opinion that everyone on the Court admits the error.
//Cert. Petition to U.S. Supreme Court filed on first holding. Supreme Court ordered state to respond.
Amicus Brief
Starks Reconsideration Motion
Starks U.S. Cert. Petition
State v. Beamon, 347 Wis.2d 559, 830 N.W.2d 681, 2013 WI 47
Supreme Court holds that sufficiency of the evidence challenge must be based on hypothetically correct instruction rather than upon instructions actually given to the jury, even when state is responsible for the allegedgly erroneous instruction provided at trial.
Amicus Brief
State v. B. Avery, 345 Wis.2d 407, 826 N.W.2d 60, 2013 WI 13
Despite new evidence that Avery could not have committed the crime, Supreme Court holds that Court of Appeals erred by granting new trial in the interests of justice. However, Court reaffirms general authority of Court of Appeals to reverse in the interests of justice in appropriate cases on appeal from the denial of collateral review.
Amicus Brief
State v. Klingelhoets, 339 Wis.2d 316, 810 N.W.2d 237, 2012 WI App 14
Court of Appeals holds that crime of mistreating an animal, resulting in death, Wis. Stat. §§951.02 and 951.18(1), does not require intent or belief that one's actions will kill the animal.
Opening Brief
Reply Brief
State v. Sutton, 339 Wis.2d 27, 810 N.W.2d 210, 2012 WI 23
Supreme Court reaffirms importance of reconsideration motions to correct technical pleading violations in post-conviction motions.
Amicus Brief
State v. D. Hanson, 338 Wis.2d 243 808 N.W.2d 390, 2012 WI 4
Court construed requirement that defendant act "wilfully" to be guilty of fleeing an officer as merely meaning "intentionally" rather than crediting Legislature's choice to use term that historically has required malice.
Opening Brief
Reply Brief
State v. McDermott, 339 Wis.2d 316, 810 N.W.2d 237, 2012 WI App 14
Court of Appeals modifies prior decision in State v. Doe, 2005 WI App 68, 280 Wis.2d 731, 697 N.W.2d 101 (assistance in solving or preventing crime is new factor that can justify sentence modification), limiting Doe's application to cases in which assistance is directed at a specific crime that has been or is about to be committed. The Court also misread State v. Ninham, 333 Wis.2d 335, 797 N.W.2d 451, 2011 WI 33, as categorically excluding developments in juvenile brain development research from being a new factor that could justify sentence modification.
Opening Brief
Reply Brief
State v. Prineas, 338 Wis.2d 362, 809 N.W.2d 68, 2012 WI App 2
Court of Appeals reverses 2004 conviction based on trial judge's erroneous exclusion of testimony regarding the complainant's actual statements of consent made during the incident. The Court previously had upheld the conviction on direct appeal
Opening Brief
Reply Brief
State v. Nielsen, 805 N.W.2d 353, 2011 WI 94
Supreme Court suggests that appellate attorneys not be sanctioned for alleged violations of appellate rules without due process of law. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers in support of Nielsen.
Amicus Brief
State v. Domke, 805 N.W.2d 364, 2011 WI 95
Supreme Court finds deficient performance of trial counsel on numberous grounds but concludes counsel's errors did not prejudice Domke. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers in support of Domke on deficiency issue.
Amicus Brief
State v. Davis, 337 Wis.2d 688, 808 N.W.2d 130, 2011 WI App 147
Court of Appeals reverses 2001 felony murder conviction in the interests of justice on the grounds that, since a number of new witnesses undermined the evidence relied upon by the state at trial, the real controversy regarding whether Davis in fact was involved in the robbery and homicide was not fully tried.
Opening Brief
Reply Brief
State v. Balliette, 336 Wis.2d 358, 805 N.W.2d 334, 2011 WI 79
Supreme Court construes criminal statue of limitations to permit prosecution of forty-year-old allegations of sexual assault of a child. HLO represented amicus in support of MacArthur.
Amicus Brief
State v. Ninham, 333 Wis.2d 335, 797 N.W.2d 451, 2011 WI 33
Supreme Court upholds sentence of life without parole for a 14-year-old defendant. HLO represented amicus Wisconsin Association of Criminal Defense Lawyers arguing for reversal of longstanding Court of Appeals authority limiting sentencing courts' ability to modify a sentence based on new factors. The Supreme Court adopted HLO's position in another case, State v. Harbor, 2011 WI 28, 333 Wis.2d 53, 797 N.W.2d 828.
Amicus Brief
State v. Nickel, 330 Wis.2d 750, 794 N.W.2d 765, 2010 WI App 161
Court of Appeals rejects collateral attack on alleged violation of State v. Cherry, 2008 WI App 80, 312 Wis.2d 203, 752 N.W.2d 393. HLO filed amicus at request of Court addressing possible collateral procedures for challenging alleged Cherry violation.
Amicus Brief
State v. McGuire, 328 Wis.2d 289, 786 N.W.2d 227, 2010 WI 91
Supreme Court upholds sexual assault charges despite argument that 36-year delay in filing charges violated due process.
Opening Brief
Reply Brief
State v. Allen, 328 Wis.2d 1, 786 N.W.2d 124, 2010 WI 89
Supreme Court holds that indigent defendant's failure to identify viable challenge to conviction in response to appointed counsel's no-merit brief bars the defendant from raising the claim or related ineffectiveness claim later, even though appointed counsel and the Court of Appeals also overlooked the claim. Court also holds that the issue later identified by the defendant was frivolous, overlooking 30 years of authority supporting the claim. HLO represented Allen pro bono at request of the Court.
Opening Brief
Reply Brief
State v. Allen, 322 Wis.2d 372, 778 N.W.2d 863, 2010 WI 10 (Recusal Order)
Justice Gableman Recusal Documents
State v. Doss, 312 Wis.2d 570, 754 N.W.2d 150, 2008 WI 93
Supreme Court reverses Court of Appeals and creates exception from United States Supreme Court's Confrontation Clause standards set forth in Crawford v. Washington, 541 U.S. 36 (2004), for affidavits created for purpose of litigation to provide necessary foundational requirements for business records that otherwise would be inadmissable hearsay.
Response Brief
State v. MacArthur, 310 Wis.2d 550, 750 N.W.2d 910, 2008 WI 72
Supreme Court construes criminal statue of limitations to permit prosecution of forty-year-old allegations of sexual assault of a child. HLO represented amicus in support of MacArthur.
Amicus Brief
State v. Payette, 313 Wis.2d 39, 756 N.W.2d 423, 2008 WI App 106
Court of Appeals relies on novel, but now controlling, interpretations of the child enticement and causing a child to practice prostitution statutes to affirm denial of motion to withdraw guilty pleas to those charges. Court's procedural analysis of plea withdrawals is quite confused and should not be relied upon. The Court also upheld the sentence against arguments that it was based in part upon anonymous threats not attributable to the defendant and resulted from a proceeding in which the defendant was effectively denied his right to be present when the court refused to allow him to look at the complainant as she made her argument in support of a maximum sentence.
Opening Brief
Reply Brief
State v. Doss, 305 Wis.2d 414, 740 N.W.2d, 2007 WI App 208
Court of Appeals applies Crawford in straight forward manner to reverse theft conviction that was based primarily upon hearsay bank records, the foundation for admission of which was provided solely by affidavits created for purposes of the litigation. The decision subsequently was reversed by the Supreme Court.
Opening Brief
Reply Brief
State v. Brown, 298 Wis.2d 37, 725 N.W.2d 262, 2006 WI 131
Amicus Brief
State v. Annina, 296 Wis.2d 599, 723 N.W.2d 708, 2006 WI App 202
Court of Appeals upholds conviction for resisting an officer, despite the fact that the alleged resistance resulted from the officers' concededly illegal entry to defendant's home without a valid warrant.
Opening Brief
Reply Brief
State ex rel. Van Hout v. Endicott, 296 Wis.2d 580, 724 N.W.2d 692, 2006 WI App 196
Court of Appeals refuses to reinstate the direct appeal rights of the petitioner who was abandoned by his appointed appellate lawyer. The Court, in a decision inexplicable in light of the controlling standards in Anders v. California, 386, U.S. 738 (1967), concludes that the petitioner somehow knowingly and voluntarily waived his right to counsel and a direct appeal by insisting that his lawyer file a merits brief rather than a no-merit report. Contrary to the Court of Appeals' suggestion, the default requirement for appellate counsel under those circumstances is to file a no merit report, not simply abandon the client.
State v. Nelson, 294 Wis.2d 578, 718 N.W.2d 168, 2006 WI App 124
Opening Brief
Reply Brief
State v. Kaster, 292 Wis.2d 252, 714 N.W.2d 238, 2006 WI App 72
Opening Brief
Reply Brief
State v. Armstrong, 283 Wis.2d 639, 700 N.W.2d 98, 2005 WI 119
Amicus Brief
State v. DeLain, 280 Wis.2d 51, 695 N.W.2d 484, 2005 WI 52
Opening Brief
Reply Brief
State v. Evans, 273 Wis.2d 192, 682 N.W.2d 784, 2004 WI 84
Opening Brief
State v. Gallion, 270 Wis.2d 535, 678 N.W.2d 197, 2004 WI 42
Amicus Brief
State v. Thornton, 270 Wis.2d 265, 677 N.W.2d 274, 2004 WI 35
Opening Brief
Reply Brief
State v. DeLain, 272 Wis.2d 356, 679 N.W.2d 562, 2004 WI App 79
Opening Brief
Reply Brief
State v. Ziebart, 268 Wis.2d 468, 673 N.W.2d 369, 2003 WI App 258
Opening Brief
Reply Brief
State v. Lo, 264 Wis.2d 1, 665 N.W.2d 756, 2003 WI 107
Opening Brief
Reply Brief
State ex rel. Tate v. Schwarz, 257 Wis.2d 40, 654 N.W.2d 438, 2002 WI 127
Amicus Brief
State v. Davis, 254 Wis.2d 1, 645 N.W.2d 913, 2002 WI 75
Amicus Brief
State v. Samuel, 252 Wis.2d 26, 643 N.W.2d 423, 2002 WI 34
Opening brief
Response brief
Gilbert v. Wisconsin Dept. of Revenue, 633 N.W.2d 218, 2001 WI App 153
Reply Brief
State v. Trecroci, 246 Wis.2d 261, 630 N.W.2d 555, 2001 WI App 126
Response brief
State v. Samuel, 240 Wis.2d 756, 623 N.W.2d 565, 2001 WI App 25
Opening Brief
State v. Weidner, 235 Wis.2d 306, 611 N.W.2d 684, 2000 WI 52
Amicus Brief
State v. Inglin, 224 Wis.2d 764, 592 N.W.2d 666 (Wis. App. 1999)
Opening Brief
Reply Brief
County of Kenosha v. C & S Management, Inc., 223 Wis.2d 373, 588 N.W.2d 236 (Wis. 1999)
Opening Brief
Reply Brief
State v. Richard A.P., 223 Wis.2d 777, 589 N.W.2d 674 (Wis. App. 1998)
Opening Brief
Reply Brief
State v. Kevin L.C., 216 Wis.2d 166, 576 N.W.2d 62 (Wis. App. 1997)
Amicus Brief
State v. Avery, 213 Wis.2d 228, 570 N.W.2d 573 (Wis. App. 1997)
State v. Van Camp, 213 Wis.2d 131, 569 N.W.2d 577 (Wis., 1997)
Opening Brief
Reply Brief
State v. Howard, 211 Wis.2d 269, 564 N.W.2d 753 (Wis. 1997)
State v. Damaske, 212 Wis.2d 169, 567 N.W.2d 905 (Wis. App. 1997)
State v. Hall, 207 Wis.2d 54, 557 N.W.2d 778 (Wis. 1997)
Opening Brief
Reply Brief
State v. Dowe, 207 Wis.2d 129, 557 N.W.2d 812 (Wis. 1997)
Amicus Brief
State v. Hicks, 207 Wis.2d 51, 557 N.W.2d 412 (Wis. 1997)
Opening Brief
Reply Brief
State v. Gilmore, 201 Wis.2d 820, 549 N.W.2d 401 (Wis. 1996)
Opening Brief
Reply Brief
State v. Lee, 197 Wis.2d 960, 542 N.W.2d 143 (Wis. 1996)
Response brief
State v. C & S Management, Inc., 198 Wis.2d 844, 544 N.W.2d 237 (Wis. App. 1995)
Opening Brief
Reply Brief
State v. Gilmore, 193 Wis.2d 403, 535 N.W.2d 21 (Wis. App. 1995)
Response brief
State v. Aukes, 192 Wis.2d 338, 531 N.W.2d 382 (Wis. App. 1995)
Opening Brief
Reply Brief
State v. Mainiero, 189 Wis.2d 80, 525 N.W.2d 304 (Wis. App. 1994)
Opening Brief
Reply Brief
State v. Braun, 185 Wis.2d 152, 516 N.W.2d 740 (Wis. 1994)
Opening Brief
Reply Brief
State v. Kurzawa, 180 Wis.2d 502, 509 N.W.2d 712, 62 USLW 2514 (Wis. 1994)
Response brief
State v. Neumann, 179 Wis.2d 687, 508 N.W.2d 54 (Wis. App. 1993)
Opening Brief
Reply Brief
State v. Braun, 178 Wis.2d 249, 504 N.W.2d 118 (Wis. App. 1993)
Opening Brief
Reply Brief
State v. Harris, 174 Wis.2d 367, 497 N.W.2d 742 (Wis. App. 1993)
Opening Brief
Reply Brief
State v. Kurzawa, 173 Wis.2d 769, 496 N.W.2d 695 (Wis. App. 1993)
State v. Fettig, 172 Wis.2d 428, 493 N.W.2d 254 (Wis. App. 1992)
State v. Hyndman, 170 Wis.2d 198, 488 N.W.2d 111 (Wis. App. 1992)
State v. Borrell, 167 Wis.2d 749, 482 N.W.2d 883 (Wis. 1992)
State v. Schober, 167 Wis.2d 371, 481 N.W.2d 689 (Wis. App. 1992)
State v. Bonds, 165 Wis.2d 27, 477 N.W.2d 265 (Wis. 1991)
Miller Brands-Milwaukee, Inc. v. Case, 162 Wis.2d 684, 470 N.W.2d 290 (Wis. 1991)
State v. Garrity, 161 Wis.2d 842, 469 N.W.2d 219 (Wis. App. 1991)
State v. Bonds, 161 Wis.2d 605, 469 N.W.2d 184 (Wis. App. 1991)
Miller Brands-Milwaukee, Inc. v. Case, 156 Wis.2d 800, 457 N.W.2d 896 (Wis. App. 1990)
State v. Bruckner, 151 Wis.2d 833, 447 N.W.2d 376 (Wis. App. 1989)
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