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Plea Withdrawal and Ineffective Assistance of Counsel

By: Derek Hawkins//March 13, 2018//

Plea Withdrawal and Ineffective Assistance of Counsel

By: Derek Hawkins//March 13, 2018//

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Terrance Lavone Egerson

Case No.: 2016AP1045-CR; 2016AP1046-CR; 2016AP1047-CR; 2016AP1048-CR; 2016AP1049-CR

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

Focus: Plea Withdrawal and Ineffective Assistance of Counsel

Terrance Lavone Egerson seeks to withdraw his guilty pleas, post sentencing, based on his claim of manifest injustice due to the alleged ineffective representation he received from trial counsel.  Egerson was initially charged with a total of sixteen felony and misdemeanor charges in five consolidated cases involving his repeated contact with his estranged wife, A.E., in violation of a domestic abuse restraining order, a temporary injunction, and various bail and sentencing no-contact orders. Fifteen of the sixteen charges contained a domestic abuse repeater enhancer. Before trial, as part of a global plea negotiation, the court dismissed all of the domestic abuse repeater enhancers on the six counts to which he was to plead guilty. Then pursuant to the negotiation, Egerson pled guilty to those six counts. The remaining counts were dismissed but read in.

Egerson’s principal ineffectiveness claim is that trial counsel was deficient for failing to file a motion challenging the sufficiency of the complaints as to the fifteen domestic abuse repeater enhancers, which he claims are unsupported in the complaints. Regarding the repeater enhancers, he argues that the relevant statutes require an allegation of physical violence, and none of the complaints alleged that Egerson had committed physical violence. See WIS. STAT. §§ 939.621(1)(b) and (2) and 968.075(1)(a) (2015-16). Additionally he claims trial counsel was ineffective for failing to move to dismiss the felony bail jumping charge in the second case (2013CF1860) and a count of intentionally violating a no-contact order in the first case (2013CF1401). He argues he was prejudiced by trial counsel’s failure to challenge these charges because the repeater enhancers resulted in overcharging, created felonies, and increased his sentencing exposure. He argues that had he been properly charged, his sentencing exposure would only have been twenty years and six months.

The State responds to his repeater enhancer claim arguing that Egerson has failed to show trial counsel was deficient because the facts in the complaints create reasonable inferences of domestic abuse, supporting the charging of the domestic abuse repeater enhancers. But, more to the point, the State argues, Egerson has failed to allege and prove prejudice on any of his three claims. The State bases that on the following facts. First, Egerson makes no claim that he would not have pled guilty but for trial counsel’s ineffectiveness. See State v. Krawczyk, 2003 WI App 6, ¶¶28-29, 259 Wis. 2d 843, 657 N.W.2d 77. Second, all of the repeater enhancers were dismissed from the charges to which he pled guilty. Third, Egerson fails to show actual rather than conceivable prejudice because the sentencing exposure he asserts he should have faced, based on the modification he says counsel should have sought, is speculative and conclusory.

We agree with the State’s analysis. Trial counsel was not deficient with regard to the repeater enhancers because the facts in the complaints, and reasonable inferences therefrom, support the enhancers. Likewise, we conclude that Egerson failed to show that trial counsel was deficient on his other two related claims. But more importantly, even if counsel’s performance was deficient (which we do not find), Egerson has failed to claim, much less show, any reasonable probability of a different result under the well-established test of Strickland. Accordingly, we affirm.

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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.

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