On Point: D. Ineffective Assistance

State v. Irvin Perez-Basurto, 2016AP2136, 7/18/2017, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Irvin Perez-Basurto was born in Mexico and brought to the United States by his mother when he was 14. He had been approved by the Homeland Security for Deferred Action for Childhood Arrivals status (he is, in common parlance, a “dreamer”) and was thus permitted to remain in this country.

State v. Alphonso Lamont Willis, 2016AP791-CR, 7/18/17, District 1 (not recommended for publication); case activity (including briefs)

Alphonso Willis appeals his jury-trial conviction of first-degree intentional homicide and being a felon in possession of a firearm. He raises several claims for a new trial and also asks for resentencing. The court of appeals rejects the resentencing claim and some of his complaints of trial error, but concludes that he is entitled to a Machner hearing on his trial counsel’s (1) failure to present testimony that his boots did not match the prints left at the scene and (2) failure to introduce evidence that the homicide occurred at a time when he had already left the vicinity.

State v. Jesse Steven Poehlman, 2016AP1074, 7/5/17, District 1 (not recommended for publication); case activity (including briefs)

The state charged Poehlman with various counts relating to two alleged incidents of sexual assault and battery of his wife–one in December 2014 and one in February 2015. The jury acquitted as to the earlier incident and convicted as to the latter. The court of appeals rejects his arguments that he must receive a new trial.

State v. Matthew Ray Taylor, 2016AP682-CR, District 1, 6/27/17 (not recommended for publication); case activity (including briefs)

Taylor argues he should get a new trial based on newly discovered evidence and ineffective assistance of counsel. The court of appeals rejects his claims.

Jae Lee v. United States, USSC No. 16-327, 2017 WL 2694701 (June 23, 2017), reversing Lee v. United States, 825 F.3d 311 (6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Lee’s lawyer told him he would not be deported if he pleaded guilty to a drug charge. His lawyer was wrong, so he performed deficiently under Padilla v. Kentucky, 559 U.S. 356 (2010). But can Lee establish his lawyer’s indisputably wrong advice prejudiced him, i.e., that he would have gone to trial had he known he would be deported even though he had no real prospect of acquittal? Yes, says a majority of the Supreme Court, rejecting the approach urged by the Government and adopted by some federal circuits.

Weaver v. Massachusetts, USSC No. 16-240, 2017 WL 2674153 (June 22, 2017); affirming Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016); Scotusblog page (including links to briefs and commentary)

Members of the public–specifically, Kentel Weaver’s family–were excluded from the overcrowded courtroom during jury selection for his trial. Violations of the Sixth Amendment right to public trial have been called structural errors not susceptible to harmless error analysis. But Weaver’s lawyer didn’t object, so this is an ineffective assistance claim, which of course requires him to show prejudice. But how do you show that you were prejudiced by a structural error–after all, the term refers to an error whose “effect … cannot be ascertained”? United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006).

State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)

Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault.  At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel  performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.

State v. Ron Joseph Allen, 2016AP885, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Ron Allen of first-degree intentional homicide as party to the crime. He raises various challenges to the conviction and sentence of life without extended supervision, but the court of appeals rejects them all.

Taylor County DHHS v. S.A.L., 2016AP2369, 6/7/17, District 3 (one-judge decision; ineligible for publication); case activity

S.A.L. appeals the termination of her parental rights to her two children. She alleges ineffective assistance of her trial counsel and that the court failed to properly exercise discretion during the dispositional phase. The court of appeals affirms.

State v. Julius Lee Sanders, 2014AP2644, 6/6/2017, District 1 (not recommended for publication); case activity (including briefs)

Julius Sanders appeals from his judgment of conviction and the denial, without a hearing, of his postconviction motion.