Criminal Procedure — ineffective assistance

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance

Where a defendant alleged that his counsel at his reconfinement hearing failed to object to inaccurate facts, he is entitled to an evidentiary hearing.

“The first issue is whether there is enough to have a Machner hearing to determine if Harris’s reconfinement counsel was ineffective for failing to object to the court’s statement that Harris ‘didn’t register with the sex offender registry.’ The State concedes that this statement was inaccurate, but asserts that the reconfinement court’s reliance on it was harmless error. We disagree. First of all, the question is not harmless error. The question is whether counsel was arguably defective for failing to object to this reference by the reconfinement court and, if so, whether Harris was likely prejudiced. At the time of the hearing, Harris was considered ‘non-compliant’ because he had failed to respond to his most recent confirmation letter. According to his postrevocation motion, this is because he had some recurring problems receiving mail at the address where he was living. Although he had registered using his correct living address, mail was delivered to a building next door. On at least one occasion, his agent’s notes show that his confirmation letter was returned to the department. Therefore, when the summary stated that he was ‘non-compliant,’ that did not mean he had failed to register. The reconfinement court was wrong to conclude otherwise, and the postrevocation court could find counsel deficient for failing to correct the reconfinement court’s inaccurate statement.”

Affirmed in part, and reversed in part.

Recommended for publication in the official reports.

2011AP983-CR State v. Harris

Dist. II, Waukesha County, Van De Water, Haughney, JJ., Brown, J.

Attorneys: For Appellant: Grass, Gary, Milwaukee; For Respondent: Wren, Christopher G., Madison; Schimel, Brad, Milwaukee