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COA rejects ineffective of assistance of trial counsel claim due to appellate lawyer’s failure to develop argument on prejudice

State v. D.C., 2016AP2229-2230, District 1, 11/30/17 (1-judge opinion, ineligible for publication); case activity

During the grounds phase of her TPR proceeding, D.C.’s lawyer asked the trial court to: (1) instruct the jury that she was prohibited from having visitation with her children for a period of time, and (2) give curative instructions that it was impossible for her to perform a condition for return of her kids and to assume parental responsibility due to her incarceration.  The court planned to rule on these requests just before trial, but, oops, that did not happen.

By the time of trial, the case had been assigned to a new judge, who issued a new set of proposed jury instructions that omitted the requested instructions. The case had also reassigned assigned to a new defense lawyer, who did not object to the new set of instructions. D.C. claimed ineffective assistance of trial counsel.

At the Machner hearing, D.C.’s lawyer offered a strategic reason for not objecting to the omission of the requested instructions:

¶10 At the remand hearing, the post-disposition circuit court defined the scope of the issue: “Counsel did not … object to the version of the jury instructions that [the circuit court] said very clearly on the record [it] was going to use and so waived any potential objections at that point. And so really the issue here is ineffective assistance of counsel in connection with that waiver.” D.C.’s trial counsel testified that she did not object to the court’s proposed standard jury instructions because D.C. “had been out of custody for several years prior to us going to trial in January of 2016…. I made the strategic decision not to keep putting the fact that [D.C. was] incarcerated, especially for child abuse, in front of the jury.”

Ultimately, the court of appeals did not address deficient performance. It rejected D.C.’s claim for ineffective assistance of counsel because her appellate lawyer’s arguments on prejudice were undeveloped and failed to respond to the State’s contention that the jury would have found grounds even with the instructions.

¶17 D.C. argues at length about why the failure of her trial counsel to object to the circuit court’s jury instructions and to request alternative jury instructions was deficient. However, beyond stating that “There was nothing to be lost, and, possibly, everything to be gained for D.C. if the jury had been given the [alternative] instructions,” and suggesting that there would have been no “harm” in submitting the alternative instructions, D.C. does not develop an argument as to how the result of the proceeding would have been different but for these alleged errors. Accordingly, I do not consider the merits of her argument further. See Clean Wisconsin, Inc. v. PSC, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 (“[The appellate court] will not address undeveloped arguments.”).

¶18 In addition, D.C. does not in her reply brief address the State’s arguments in its response brief that there was no prejudice. The State argues that the jury would have reached the same results even if the alternative instructions were read to the jury because of the “ample evidence” of D.C.’s failure to complete her conditions of return under the continuing CHIPs and her failure to assume parental responsibility as to A.RC. and D.RC. both (1) when she was not incarcerated, and (2) given the opportunities for her to do so despite the no-contact order as to A.RC. D.C.’s failure to respond to these arguments in her reply brief is taken as a concession that the State’s arguments are correct. See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (an appellant’s failure to respond in a reply brief to the arguments in a response brief may be deemed a concession).

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