Criminal Procedure — ineffective assistance

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

It was not deficient performance for an attorney to fail to consult objective sentencing data before advising a client that a nonprison sentence was a possibility if he pleaded guilty.

“In addition, although a defense attorney is free to consider sources of objective sentencing data, failing to do so is not ineffective assistance. Sentencing in Wisconsin is individualized. State v. Gallion, 2004 WI 42, ¶48, 270 Wis. 2d 535, 678 N.W.2d 197. The sentencing commission and sentencing guidelines have been abolished. State v. Barfell, 2010 WI App 61, ¶4, 324 Wis. 2d 374, 782 N.W.2d 437. The court will not consider that data at sentencing. So its relevance is limited. The reality is that whatever the objective sentencing data shows about overall sentencing, a defendant’s chances of a particular sentence are individual. A defendant’s situation in trying to predict the sentence he or she will receive is similar to the situation of a person diagnosed with a serious illness. Data may show that only 25% of people survive the disease, but for any particular individual, the chances of survival are black or white, zero or 100%. Likewise, few individuals convicted of both charges Carlson was facing may obtain nonprison sentences, but for any particular individual, the chances were zero or 100%. And in Carlson’s individual situation, if a nonprison sentence was his hope, pleading guilty was a sound strategy — perhaps the only realistic strategy — for achieving that outcome.”

Affirmed.

Recommended for publication in the official reports.

2013AP2559-CR State v. Carlson

Dist. II, Ozaukee County, Williams, J., Brown, J.

Attorneys: For Appellant: Wiercioch, Gregory W., Madison; For Respondent: Weinstein, Warren D., Madison; Gerol, Adam Y., Port Washington

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