On Point: 14. Ineffective assistance of counsel

State v. Michele M. Ford, 2022AP187 & 2022AP188, 10/31/23, District I (one-judge decision; ineligible for publication); case activity

The takeaway from this procedurally convoluted case is that Ford succeeds in her appeal from an order finding her incompetent to stand trial in two misdemeanor cases. Specifically, the court reverses and remands for a “nunc pro tunc” competency hearing at which the circuit court will have to determine whether Ford was competent to proceed without relying on trial counsel’s statements to the evaluator, which the court holds violated the attorney-client privilege and amounted to ineffective assistance of counsel. (Op., ¶26).

Tyler A. Gonzales v. Cheryl Eplett, No. 22-2393, 8/9/23 (Available on Westlaw as 2023 WL 5086451)

In a case demonstrating the full power of AEDPA’s stringent standard of review, the 7th Circuit is powerless to grant a new trial despite its palpable discomfort when evaluating the performance of defense counsel.

State v. Jovan T. Mull, 2023 WI 26, 4/4/23, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court rejects Mull’s claims that his trial lawyer was ineffective at his trial, though it reaffirms that trial counsel’s strategic decisions are not given automatic deference, but are judged for their objective reasonableness under all the circumstances.

State v. William J. Buffo, 2022AP1803-4-CR, District IV, 7/13/23, 1-judge decision ineligible for publication; case activity (briefs available)

In another messy pro se appeal, COA overlooks the State’s failure to file a response brief and affirms the circuit court’s “evidently correct” decision.

State v. I.B., 2022AP911 & 2022AP912, District I, 6/6/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

Although the State appears to have conceded it did not follow the statutory requirements for proper service of the petition(s) in this TPR, Ivy’s appeal fails because she did not object below. And, because the error could have been cured if counsel had objected, her ineffectiveness claim also fails.

N.D. v. E.S., 2022AP1084, District 2, 01/25/23 (one-judge decision; ineligible for publication); case activity

Nancy (N.D.) petitioned to terminate Ed’s (E.D.’s) parental rights on the grounds that he abandoned their daughter, Kim. See Wis. Stat. § 48.415(1). At trial, Ed asserted a “good cause” defense that Nancy prevented him from having contact with Kim, and in response, Nancy was allowed to testify that the reason for her interference was Ed’s  “heroin use.” Despite the fact that Nancy had no personal knowledge of Ed’s suspected heroin use, the circuit court ruled, and the court of appeals agrees, that the fact that Ed admitted to being drug tested was sufficient foundation for Nancy’s testimony. As a result, Ed’s ineffective assistance of counsel claims related to this evidence fails.

State v. Theophilous Ruffin, 2022 WI 34, reversing an unpublished court of appeals decision; case activity (including briefs)

This case doesn’t break new ground or develop existing law. Instead, it reverses the court of appeals for not applying the standard a circuit applies when deciding whether to hold an evidentiary hearing on a postconviction motion that alleges ineffective assistance of trial counsel.

State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity

Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.

State v. Lamont Donnell Sholar, 2016AP987, petition for review granted 10/17/17; case activity (including briefs)

Issues (composed by On Point)

1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?

2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?