On Point: 1. Deficient performance

State v. Annette Morales-Rodriguez, 2014AP1438-CR, District 1, 2/3/15 (not recommended for publication); click here for briefs

A defendant must assert that she was denied her constitutional right to the counsel of her choice before trial, not after. Also, an attorney clears the “deficient performance” prong of an ineffective assistance of counsel claim where he withdraws as counsel based on a possible conflict even if the client wants him as her lawyer and will waive the conflict.

Review of two court of appeals decisions (one published, one unpublished) that will be argued together. State v. Shata (case activity) and State v. Ortiz-Mondragon (case activity)

Issue in Shata (composed by On Point)

Whether the defendant, a foreign national, should be permitted to withdraw his guilty plea because his trial counsel failed to provide him with “complete and accurate” information about the deportation consequences of pleading guilty?

State v. David M. Carlson, 2014 WI App 124; case activity

Note to trial courts: When ineffective assistance of counsel claims are based what trial counsel said to his client, hold an evidentiary hearing. Note to defense counsel: Data showing the sentences received by defendants charged with the same crimes as your client is about as useful as data showing a patient diagnosed with a lethal illness the survival rates of similarly-diagnosed patients.  Note to all: A single, inaccurate, hyperbolic remark during the course of a long sentencing explanation is harmless even if the trial court relied upon it.

State v. Ryan P. O’Boyle, 2014AP80-CR, District 1, 11/4/14 (not recommended for publication); case activity

O’Boyle’s claims of ineffective assistance of counsel are rejected because trial counsel’s performance wasn’t deficient.

State v. Isaiah N. Triggs, 2014AP204-CR, District 1, 10/28/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for waiving a preliminary hearing in Triggs’s homicide prosecution or for failing to move to suppress Triggs’s confession. Further, the circuit court’s plea colloquy with Triggs was not defective and the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Gabriel Justin Bogan, 2014AP285-CR, District 1, 10/14/14 (not recommended for publication); case activity

In this 1st-degree reckless homicide and 1st-degree reckless endangering safety case, the court of appeals held that the evidence presented at trial did not support a “defense of others” jury instruction. Thus, Bogan’s trial lawyer was not ineffective for failing to pursue that theory of defense.

State v. Fernando Ortiz-Mondragon, 2014 WI App 114, petition for review granted 12/18/14, affirmed, 2015 WI 73; case activity

Ortiz-Mondragon’s trial counsel wasn’t ineffective under Padilla v. Kentucky, 559 U.S. 356 (2010), for failing to advise Ortiz-Mondragon that his convictions were “crimes involving moral turpitude” (CIMT) and would result in mandatory deportation and a permanent bar on reentry. Unlike the conviction in Padilla, CIMT is a “broad classification of crimes” that escapes precise definition, and there’s no clear authority indicating any of the crimes to which Ortiz-Mondragon pled were crimes of moral turpitude. Thus, the deportation consequences of Ortiz-Mondragon’s plea was unclear and uncertain, and his attorney wasn’t deficient in failing to unequivocally inform him that his plea would result in deportation and inadmissibility.

State v. James R. Hunt, 2014 WI 102, 8/1/14, reversing an unpublished per curiam court of appeals decision; majority opinion by Justice Gableman; case activity

The court of appeals granted Hunt a new trial; the supreme court takes that new trial away. The supreme court’s decision does not develop any new law or address a novel issue of statewide concern—and that’s no surprise, for as described here, the state’s petition for review admitted the case didn’t meet the usual standards for review. Instead, the court applies well-developed rules governing harmless error and ineffective assistance of counsel to the fact-specific claims in this case. In the course of doing so, however, the court misunderstands, ignores, or inverts some fundamental tenets of appellate review and basic rules of evidence.

State v. John W. Kaczmarek, 2013AP1745-CR, District 4, 7/31/14 (1-judge; ineligible for publication); case activity

Trial counsel wasn’t ineffective for failing to discover before Kaczmarek’s bail jumping trial that the hearing notice mailed to the defendant had been returned, as there was other evidence he’d received notice of the hearing. Nor was counsel ineffective for failing to call certain witnesses, as one may have provided evidence that contradicted Kaczmarek and the other wouldn’t have provided much help to the defense. Finally, counsel wasn’t ineffective for failing to object to an arguably erroneous jury instruction.

State v. Lester C. Gilmore, 2013AP2186-CR, District 2, 7/30/14 (not recommended for publication); case activity

Trial counsel wasn’t ineffective for failing to call a witness at a Franks v. Delaware, 438 U.S. 154 (1978), hearing because counsel was concerned the witness was unpredictable and might undermine his argument and because he was instead able to rely on the witness’s written statement to the police, which itself showed the discrepancy between the witness’s statement and the information in the search warrant affidavit.