Ineffective assistance — Judicial estoppels — sentencing discretion

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Wisconsin Court of Appeals

CRIMINAL

Ineffective assistance

Judicial estoppel; sentencing discretion

Aaron Deal appeals a judgment of conviction in which he was found guilty by a jury of one count of first-degree intentional homicide by use of a dangerous weapon, and one count of armed robbery, both as a party to a crime. Deal also appeals from a postconviction order denying his motion for a new trial and resentencing, based on Deal’s assertion that his trial counsel was ineffective. Deal’s motion for a new trial argued that his trial counsel: (1) failed to adequately explain Deal’s opportunity to plead to felony murder; and (2) failed to present a felony murder defense to the jury. Deal also sought a new sentence, arguing that his sentence was unduly harsh compared to that of his co-defendant who Deal claims shot the victim seven times while Deal shot only once. Because we agree with the trial court that Deal repeatedly rejected the opportunity to plead to felony murder and insisted on the very defense he now asserts is proof of his counsel’s ineffective assistance, we conclude that his lawyer’s performance was not deficient. We also conclude that because Deal was convicted of a far more serious offense than his co-defendant, the disparity in sentences is reasonable under the circumstances. We affirm. Not recommended for publication in the official reports.

2010AP1804-CR State v. Deal

Dist I, Milwaukee County, Wagner, Conen, JJ., Kessler, J.

Attorneys: For Appellant: Rebholz, James A., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Larson, Sarah K., Madison