On Point: D. Ineffective Assistance

State v. Michael Nelson, 2021AP1133-CR, 3/9/22, District 2 (1-judge opinion, ineligible for publication); case activity

Nelson, who values his right to bear arms, pled guilty to several crimes, including disorderly conduct and domestic violence.  As a condition of his probation, he was barred from possessing firearms. Postconviction, he claimed that his trial lawyer incorrectly advised him that “pleading to disorderly conduct could result in a temporary rather than permanent loss of his gun rights” and that the trial court erred in denying him a hearing on his ineffective assistance of counsel claim.

State v. Shane Allan Stroik, 2022 WI App 11; case activity (including briefs)

A jury convicted Stroik of the sexual assault of a then-five-year old girl, “Amy,” the daughter of his girlfriend. Postconviction, Stroik brought a slew of claims for a new trial; the circuit court rejected them all. The court of appeals now holds that trial counsel performed deficiently in not obtaining a report from child protective services detailing an accusation Amy had made about her cousin a few months before she accused Stroik–an accusation about an assault quite similar in its details to the one she would later say Stroik committed. The court also finds a reasonable probability that this evidence would have resulted in an acquittal, and thus grants Stroik a new trial.

State v. Ronald Henry Griffin, 2020AP1750-CR, 2/22/22, District 1; case activity (including briefs)

Griffin and his friend, Taylor, were charged with sexually assaulting T.H. Taylor pled and agreed to testify against Griffin, who went to trial and was found guilty. He filed a pro se appeal arguing that (1) the State failed to turn over Brady evidence (2) he received ineffective assistance of counsel, and (3) the circuit court erroneously admitted two letters, which were not authenticated. The court of appeals affirmed the conviction but Judge Dugan filed a concurrence on the third issue.

State v.  Larry Jackson, 2020AP2119-CR, petition for review of a per curiam opinion granted   1/11/22; case activity (including briefs)

Issue (derived from Jackson’s petition for review):

When a defendant claims ineffective assistance of counsel based on his trial lawyer’s failure to investigate alibi witnesses, and the State responds that these witnesses have credibility issues, may the circuit court deny the defendant’s claim without a Machner hearing where the alibi witnesses testify?

State v. Daimon Von Jackson, Jr., 2019AP2383, 12/29/21, District 2 (not recommended for publication) case activity (including briefs); petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23

Jackson admitted being involved in a planned robbery that ended in the shooting death of its target. He said–and eyewitness testimony and physical evidence corroborated–that he wasn’t the shooter; instead he said he was the lookout. The state charged him with felony murder, armed robbery and being a felon in possession of a gun. Eventually, he entered a plea to second-degree reckless homicide. He says this plea came about because his trial lawyer, by lack of communication or preparation for trial, left him no choice–and the circuit court refused to allow him to dismiss that lawyer.

State v. Steven Tyrone Bratchett, 2020AP1347-Cr, 11/9/21, District 1, (not recommended for publication), case activity (including briefs)

A jury convicted Bratchett of burglary, armed robbery, and attempted 3rd-degree sexual assault.  Bratchett argued and lost 6 issues on appeal. The court of appeals split over two of them, and they are focus of this post. The majority (Judges White and Donald) held that: (1) the photo array the victim used to identify Bratchett, while impermissibly suggestive, was still reliable, and (2) trial counsel was not ineffective for failing to impeach the victim with her inconsistent statement. Judge Dugan would reverse on these issues and grant a new trial.

We have a new development to report.  Recall that in 2015, Federal Defender Shelley Fite wrote an excellent guest post about a 7th Circuit decision, Pidgeon v. Smith, 785 F.3d 1165 (2015).  The 7th Circuit held that Machner‘s requirement–that a defendant claiming ineffective assistance of counsel must present his lawyer’s testimony at an evidentiary hearing–is just a Wisconsin rule. “[A]n ineffective assistance claim is a claim under the United States Constitution” and “[n]othing in Strickland or its progeny requires prisoners seeking to prove ineffective assistance to call the challenged counsel as a witness.”

State v. Richard Michael Arrington, 2019AP2065, review of a published court of appeals decision granted 9/14/21, case activity (including briefs)

Issues (from the state’s PFR; response here):

Did Arrington prove that his counsel was ineffective for failing to move to suppress the CI’s recordings and testimony on Sixth Amendment grounds?

Did Arrington prove that the State violated his Sixth Amendment right to counsel?

State v. Theophilous Ruffin, 2019AP1046-CR, petition for review of an unpublished court of appeals decision granted 9/17/21; case activity (including briefs)

Issue presented (from the State’s PFR)

Is Ruffin entitled to an evidentiary hearing based on his postconviction allegation that his trial counsel was deficient for not pursuing a theory of self-defense?

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?