On Point: D. Ineffective Assistance

State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)

Phillips challenges his conviction for failing to pay child support because:  (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing.  The court of appeals rejects all of Phillips’s claims. 

State v. David D. Hartl, Jr., 2014AP2921-CR, District 3, 7/28/15 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

In this OWI case, trial counsel moved to exclude reference to the 911 call about a possible drunk driver, which is what led to police to look for Hartl’s car and ultimately stop him. The state stipulated to excluding this evidence. But on cross-examination of the officer, trial counsel asked questions that led to the officer referring to the call. (¶¶4-5). Hartl argues his lawyer was ineffective for doing this. (¶¶12-14). While it would be “difficult to conclude” trial counsel wasn’t deficient (¶16), it is easy to conclude there was no prejudice.

State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)

In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences.  In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.

As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney.  Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.

State v. Kamille M., 2014AP2911, District 1, 6/26/15 (one-judge decision; ineligible for publication); case activity

Trial counsel wasn’t ineffective at Kamille M.’s TPR grounds trial for failing to object to hearsay and to the state’s veiled reference to the best interests of the child during closing arguments.

Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15

Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.

Curtis J. Pidgeon v. Judy P. Smith, Warden, 7th Circuit Court of Appeals No. 14-3158, 5/13/15

In a federal habeas case, the Seventh Circuit has confirmed that the Machner hearing, like New Glarus beer and squeaky cheese curds, is a Wisconsin anomaly. State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979.) Special guest Shelley Fite (SPD alum turned Federal Defender staff attorney) explains what this federal court decision could mean for state court IAC claims.

State v. Royce L. Hawthorne, 2014AP1566/67, 5/12/15, District 1 (not recommended for publication); click here for briefs

Hawthorne filed a pro se appeal from the denial of his §974.06 postconviction motion, which raised 9 claims of ineffective assistance of postconviction counsel and 3 claims of ineffective assistance of appellate counsel. The court of appeals dispensed with on and all in short order. Two aspects of the decision may be of interest.

State v. Frank D. Roseti, 2014AP2299-CR, District 2, 4/15/15 (one-judge decision; ineligible for publication); case activity (including briefs)

A claim that trial counsel was ineffective for failing to object to an alleged discovery violation falls short because the defendant does not develop an argument as to why an objection would have prevailed.

State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)

Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.

State v. Kendra E. Manlick, 2014AP2138-CR, 2014AP2626-CR, 4/1/15, District 2 (1-judge opinion, ineligible for publication); click here for docket and briefs

Manlick was charged with possession of a controlled substance and bail-jumping after an officer, who knew of her drug record, stopped the car she was driving based on an outstanding warrant for the car’s owner, observed unsterile hypodermic needles in it, and then conducted a search yielding additional incriminating evidence.  Manlick’s suppression and ineffective assistance of counsel claims failed on appeal.