Criminal Procedure — ineffective assistance

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Wisconsin Supreme Court

Criminal

Criminal Procedure — ineffective assistance

A defendant who alleges in a sec. 974.06 motion that his postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims he wishes to bring are clearly stronger than the claims postconviction counsel actually brought.

“However, in evaluating the comparative strength of the claims, reviewing courts should consider any objectives or preferences that the defendant conveyed to his attorney. A claim’s strength may be bolstered if a defendant directed his attorney to pursue it.”

“Second, the defendant has not offered a sufficient reason in his third postconviction motion for failing to raise his § 974.06 claim in his second postconviction motion. Without a sufficient reason, a defendant may not bring a claim in a § 974.06 motion if that claim ‘could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.’ State v. Escalona-Naranjo, 185 Wis. 2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant’s claim is barred.”

“Third, even if the § 974.06 motion were not barred on ‘sufficient reason’ grounds, the motion does not allege sufficient facts that, if true, would entitle the defendant to relief. The defendant failed to allege that the plea withdrawal claim was clearly stronger than the resentencing claim. He does not specifically state which postconviction attorney was ineffective and instead makes an ambiguous reference to ‘postconviction counsel.’ The motion then focuses almost exclusively on trial counsel and does not provide facts regarding postconviction counsel’s performance. Consequently, the defendant’s motion falls far short of what is required, and the circuit court properly determined that he is not entitled to an evidentiary hearing.”

Affirmed.

2012AP55 State v. Romero-Georgana

Prosser, J.

Attorneys: For Appellant: Lichstein, Byron C., Madison; Brelie, Sara Kelton, Madison; For Respondent: Gansner, William L., Madison; Lasee, David L., Green Bay