On Point blog, page 7 of 31
Ineffective assistance, newly discovered evidence claims fail
State v. Robert C. Washington, 2018AP1771-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)
Washington was convicted of first degree reckless homicide and first degree reckless injury for shooting his two sons, killing one and injuring the other. He argues his lawyer was ineffective for advising him to plead without discussing possible lesser included offense possibilities and for failing to advocate for him at sentencing. He also argues newly discovered evidence shows the shootings were accidental, not reckless.
SCOW: professional misconduct warranting suspension does not demonstrate ineffective assistance of counsel
State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)
Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.
The Strickland standard stinks
You don’t have to say that 3 times fast . . . or slow. We all know it’s true. Here is a study that confirms the point. While the article focuses on death penalty cases, its conclusions apply broadly. Want to challenge Strickland? This article is a place to start.
Escalona hurdle overcome, but § 974.06 motion rejected on merits
State v. Casey M. Fisher, 2017AP868, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)
Fisher’s § 974.06 postconviction motion clears the hurdle erected by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), but fails on the merits.
Ineffective assistance, multiplicity claims rejected
State v. Martez C. Fennell, 2017AP2480-CR, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)
Fennell unsuccessfully challenges his convictions for armed robbery and operating a vehicle without the owner’s consent, arguing that the charges are multiplicitous and that trial counsel should have subpoenaed a witness who would have impeached the victim’s identification of him.
SCOTUS: lawyer who ignores client’s request for appeal from guilty plea is ineffective
Garza v. Idaho, USSC No. 17-1026, reversing Garza v. State, 405 P.3d 576 (Idaho 2017); Scotusblog page (includes links to briefs and commentary)
This case involved two plea agreements that included clauses stating that Garza waived his right to appeal. After sentencing, Garza told his lawyer that he wanted to appeal, but his lawyer refused due to the plea agreement. Garza filed claim for ineffective assistance of counsel. Siding with Garza, SCOTUS held that counsel performed deficiently and that “prejudiced is presumed” because the failure to file a notice of appeal deprived Garza of an appeal altogether. Opinion at 1.
Defendant must testify to prove that, but for counsel’s advice to plead, he would have gone to trial
State v. Jeninga, 2019 WI App 14; case activity (including briefs)
Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.
SCOW alters test for whether state “suppressed” evidence under Brady v. Maryland
State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)
The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.
Court of appeals rejects claim that counsel became a witness in his client’s case and should have withdrawn
State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)
On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.
Defense win! Trial court erred in denying a Machner hearing and applying the wrong prejudice test to IAC claim
State v. Victor Yancey, Jr., 2018AP802-CR, 1/8/19, District 2 (1-judge opinion, eligible for publication); case activity (including briefs)
Stormy applause for Godfrey & Kahn who took this appeal pro bono and then won it! The court of appeals held that Yancey alleged a prima facie claim for ineffective assistance of counsel when he pled guilty and was entitled to a Machner hearing. It also held that the trial court incorrectly held that to establish prejudice Yancey had to show a “reasonable probability that he would have been able to mount a successful challenge to the State’s evidence at a trial.”