Ineffective Assistance of Counsel

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WI Supreme Court

Case Name: State of Wisconsin v. Anthony R. Pico

Case No.: 2018 WI 66

Focus: Ineffective Assistance of Counsel

A jury convicted Anthony R. Pico of sexually assaulting a young girl. Mr. Pico believes there is a reasonable probability that, absent his trial counsel’s alleged constitutional ineffectiveness, this conviction would not have occurred. The circuit court agreed, and so set aside his conviction. The court of appeals did not agree, and so reinstated the conviction. Mr. Pico asked us to review his case because he believes the court of appeals did not properly defer to the circuit court’s findings of fact when conducting the ineffective assistance of counsel analysis required by Strickland v. Washington, 466 U.S. 668 (1984). The State, on the other hand, believes the court of appeals decided the matter correctly and that it was the circuit court that erred when it allowed an expert to testify about the reasonableness of defense counsel’s representation. Finally, Mr. Pico argues that if we agree with the State, then we should send the case back to the circuit court because his sentence was improperly enhanced based on his continued assertion of innocence during the sentencing phase of this matter.

These arguments call on us to review the following three issues. First, whether the court of appeals improperly substituted the circuit court’s findings of fact with its own when it assessed the sufficiency of trial counsel’s performance. Second, whether an expert witness may testify about the reasonableness of trial counsel’s performance. And third, whether the circuit court improperly relied on Mr. Pico’s lack of remorse when it fashioned his sentence. With respect to the first issue, we conclude that the court of appeals conducted the Strickland analysis properly and that Mr. Pico’s trial counsel performed as required by the constitution. As to the second, we hold that expert testimony at a Machner hearing regarding the reasonableness of trial counsel’s performance is not admissible. And finally, we hold that the circuit court did not err when it imposed sentence on Mr. Pico.

Affirmed

Concur: R.G. BRADLEY, J., concurs, joined by KELLY, J. (opinion filed).

Dissent: ABRAHAMSON, J., dissents, joined by A.W. BRADLEY, J. (opinion filed).

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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.