On Point: 4. Litigating IAC

State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply

Ineffective Assistance – Inconsistent Defenses

Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.

¶15      First,

decision below: summary order (not posted); case information here; prior appeal: 2001AP2527-CR; for Balliette: Steven D. Grunder, SPD, Madison Appellate

Issue (from AG’s petition for review):

Is an evidentiary hearing into the effectiveness of post-conviction counsel required in every case where the § 974.06 motion merely makes the conclusory allegation that post-conviction counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct review?

State v. Timothy Ray Anderson, 2009AP2416-CR, District 1, 8/17/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Jeremy C. Perri; BiC; Resp.; Reply

Anderson’s postconviction motion for plea withdrawal, on the ground he didn’t understand that a charge “dismissed outright” could nonetheless be considered at sentencing, was properly denied without hearing. The circuit expressly denied that the dismissed charge was factored into the sentence,

court of appeals decision (3-judge; not recommended for publication); pro se; Resp. Br.

Postconviction Motion, IAC Claim
Denial of Machner hearing upheld: defendant’s affidavit in support of motion “conclusory,” and claims otherwise contradicted by contemporaneous record.

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.; Reply Br.

Ineffective Assistance
Machner hearing not required because record “conclusively demonstrates” no deficient performance; nor can prejudice be shown from asserted deficiency.

court of appeals decision (3-judge; not recommended for publication)

Machner Hearing
Postconviction motion conclusory, didn’t require Machner hearing on effective assistance.

Recusal
Judicial comments reflecting attempt to get Jackson to tell truth in connection with asserted problems with lawyer didn’t establish judicial bias.

Sentencing
Sentence taking into account primary factors and much less than maximum penalty not erroneous exercise of discretion.

State v. John Allen, 2004 WI 106, affirming unpublished decision
For Allen: Michael J. Backes

Issue/Holding:

¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. …¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that,