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Ineffective Assistance of Counsel

By: Derek Hawkins//March 25, 2020//

Ineffective Assistance of Counsel

By: Derek Hawkins//March 25, 2020//

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WI Supreme Court

Case Name: State of Wisconsin v. Carrie E. Counihan

Case No.: 2020 WI 12

Focus: Ineffective Assistance of Counsel

The petitioner, Carrie E. Counihan, seeks review of an unpublished, authored decision of the court of appeals affirming her judgment of conviction and the denial of her motion for postconviction relief. She asserts that the circuit court violated her right to due process at sentencing and, alternatively, that her trial counsel provided ineffective assistance at sentencing.

Specifically, she argues that the circuit court denied her due process at sentencing by failing to provide her with notice that it would consider previously unknown information first raised by the circuit court at sentencing. Further, Counihan contends that her trial counsel was ineffective for failing to object to the consideration of such information and for failing to seek an adjournment to allow time to investigate and review the information on which the circuit court relied.

In response, the State asserts that Counihan forfeited her direct challenge to the previously unknown information considered at sentencing because she failed to object at the sentencing hearing. It further contends that Counihan’s trial counsel was not ineffective for failing to object or seek an adjournment.

We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.

Further, we conclude that Counihan’s due process rights were not violated by the circuit court’s use of the previously unknown information regarding similarly situated defendants. Because there was no due process violation, we need not address Counihan’s alternative argument that her counsel provided ineffective assistance at sentencing. Accordingly, we modify the decision of the court of appeals, and as modified, affirm.

Modified, as modified, affirmed.

Concur: REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined.

Dissent:

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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.

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