OWI – Ineffective Assistance of Counsel

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Toby J. Vandenberg

Case No.: 2018AP1810-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: OWI – Ineffective Assistance of Counsel

Toby Vandenberg appeals a judgment, entered upon his no-contest plea, convicting him of seventh-offense operating a motor vehicle while intoxicated (OWI) and an order denying his motion for postconviction relief. Vandenberg claims that his trial attorney provided ineffective assistance at his sentencing hearing, and he therefore seeks resentencing.

Vandenberg contends that his trial attorney performed deficiently at his sentencing hearing by: (1) arguing for the imposition of an illegal sentence; and (2) failing to meaningfully advocate for Vandenberg. He further contends that because his attorney’s deficient performance was tantamount to a complete denial of counsel, we should apply a presumption of prejudice to his ineffective assistance claim. In the alternative, he argues that even if prejudice is not presumed, there is a reasonable probability that the result of his sentencing hearing would have been different had he received the effective assistance of counsel at that hearing.

We conclude that Vandenberg’s trial counsel did not perform deficiently. In reaching this conclusion, we recognize that a portion of Vandenberg’s trial attorney’s sentencing argument—when viewed in isolation— was arguably unreasonable insomuch as counsel requested that the circuit court place Vandenberg on probation. When considering the totality of the circumstances surrounding counsel’s argument, however—namely, the fact that counsel framed his argument as seeking an extension of the law and alternatively argued that the court impose the minimum three-year initial confinement period mandated by existing law—we conclude that counsel’s overall performance was reasonable. In addition, we determine that counsel’s decision not to focus on Vandenberg’s good character and positive social history was not an abdication of counsel’s role at sentencing; rather, it was a reasonable strategic decision.

We further conclude that, even assuming Vandenberg’s trial attorney performed deficiently, Vandenberg was not prejudiced by that deficient performance. With respect to Vandenberg’s argument that we should presume prejudice in this case, we determine that the circumstances of this case do not amount to a complete denial of counsel and therefore such a presumption is not warranted here. And, finally, we determine that Vandenberg has failed to demonstrate that there is a reasonable probability that the result of his sentencing hearing would have been different but for his attorney’s assumed deficient performance. Accordingly, we affirm.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.