By: WISCONSIN LAW JOURNAL STAFF//October 22, 2013//
Wisconsin Court of Appeals
Criminal
Criminal Procedure — ineffective assistance
Marty Franzke appeals an order denying his pro se Wis. Stat. § 974.06 (2011-12), motion for a new trial. Franzke had a previous postconviction motion and appeal, and attempts to avoid the prohibition against successive postconviction motions by alleging ineffective assistance of his initial postconviction counsel, Edward J. Hunt. He contends Hunt was ineffective for failing to make two arguments: (1) the trial court violated Franzke’s Sixth and Fourteenth Amendment rights when it sent exhibits (human services reports) to the jury room at the jury’s request without Franzke or his attorney being present; and (2) Franzke’s trial counsel, Joseph Norby, was ineffective for failing to request a mistrial after he learned the jury received these exhibits and because Norby referred to the exhibits as part of an intervention by the agency. He also contends the court improperly exercised its discretion by not allowing him to subpoena Norby, the author of one of the human services reports, and a juror for the present postconviction motion hearing. We reject these arguments and affirm the order. This opinion will not be published.
Dist III, Outagamie County, McGinnis, J., Per Curiam
Attorneys: For Appellant: Franzke, Marty J., pro se; For Respondent: Schneider, Carrie A., Appleton; Burgundy, Sarah, Madison