Ineffective Assistance of Counsel

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Joe Bonds Turney

Case No.: 2015AP1651-CR; 2015AP1652-CR

Officials: Curley, P.J., Brennan and Brash, JJ

Focus: Ineffective Assistance of Counsel

Joe Bonds Turney appeals from two judgments of conviction and an order denying his postconviction motion. Turney seeks new trials, claiming that the trial court erred when it permitted joinder of two cases for trial and when it denied his motion for substitution of judge following his arraignment. In the alternative, he argues that he is entitled to a remand for an evidentiary hearing on his ineffective assistance of counsel claim. He bases that claim on trial counsel’s failure to object when a witness for the State testified on direct examination regarding Turney’s silence during a custodial investigation after his arrest. We affirm because we conclude that neither the joinder nor the substitution denial was error. First, because the crimes share “common … factors of substantial factual importance,” and because of the strong policy favoring joinder to further the goals of trial economy and convenience, we conclude that the joinder is proper and not substantially prejudicial. See WIS. STAT. § 971.12 (2013- 14) and Francis v. State, 86 Wis. 2d 554, 560, 273 N.W.2d 310 (1979). Second, the statutory right to substitution in WIS. STAT. § 971.20(4) is extinguished after arraignment, and in this case the arraignment occurred before the substitution request during a hearing on December 13, 2015. The timing of the request is dispositive. We require strict adherence to the statute in order to avoid “substantial problems” in administering the right of substitution. See State v. Austin, 171 Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992). Third, we conclude that Turney’s postconviction motion does not allege sufficient material facts that, if proven, would demonstrate that counsel’s failure to object to the testimony in question was deficient performance or that it “deprive[d] the defendant of a fair trial, a trial whose result is reliable.” See State v. Balliette, 2011 WI 79, ¶2, 336 Wis. 2d 358, 805 N.W.2d 334 (stating standard for motion); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating test for prejudice). Therefore we conclude that Turney is not entitled to an evidentiary hearing. We discuss each issue in turn below.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.