Ineffective Assistance of Counsel

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. James L. Lumpkin

Case No.: 2016AP2145-CR

Officials: Sherman, Blanchard and Kloppenburg, JJ.

Focus: Ineffective Assistance of Counsel

James Lumpkin appeals a judgment of conviction and an order denying his postconviction motion. We reverse on one count due to ineffective assistance of counsel, but we affirm as to other counts. Lumpkin was convicted after a jury trial of possession of cocaine and heroin, both with intent to deliver; delivery of heroin; and possession of THC. He filed a postconviction motion that the circuit court denied after an evidentiary hearing.

Lumpkin’s arguments are all based on a theory of ineffective assistance of counsel. To establish ineffective assistance of counsel a defendant must show that counsel’s performance was deficient and that such performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id.

We affirm the circuit court’s findings of fact unless they are clearly erroneous, but the determination of deficient performance and prejudice are questions of law that we review without deference to the trial court. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d 711 (1985).

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