2010AP785-CR State v. Stewart

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Criminal Procedure
Ineffective assistance; evidentiary hearings

Ralph S. Stewart appeals from the judgment of conviction entered against him and the order denying his motion for postconviction relief. Stewart argues on appeal that he received ineffective assistance of trial counsel, that the circuit court erred when it denied his motions to strike the jury panel and for a mistrial, that he is entitled to a new trial in the interests of justice, and, in the alternative, that the gun used in the crime should be tested for DNA. We conclude that the circuit court did not err when it denied his motion for a mistrial and the postconviction motion for DNA testing. We conclude, however, that Stewart is entitled to an evidentiary hearing on whether he received ineffective assistance of trial counsel. Consequently, we affirm the judgment of conviction, we affirm in part and reverse in part the order denying the motion for postconviction relief, and we remand the matter to the circuit court for a hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). This opinion will not be published.

2010AP785-CR State v. Stewart

Dist I, Milwaukee County, McMahon, Martens, JJ., Per Curiam

Attorneys: For Appellant: Lichstein, Byron C., Madison; For Respondent: Loebel, Karen A., Milwaukee; O’Neil, Aaron R., Madison

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