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Court of appeals rejects multiple challenges to conviction for failure to pay child support

State v. Bradley Wayne Phillips, 2014AP2519-CR, District 1, 9/1/15 (not recommended for publication); case activity (including briefs)

Phillips challenges his conviction for failing to pay child support because:  (1) the trial court prohibited testimony from an expert witness about whether Phillips was employable; (2) the postconviction court did not find Phillips’s defense counsel ineffective for allegedly failing to present a plea offer from the State; (3) the postconviction court denied Phillips a Machner hearing on his multiple other allegations of ineffective assistance of counsel; and (4) the postconviction court denied Phillips’ motion for resentencing.  The court of appeals rejects all of Phillips’s claims. 

Phillips was charged with six counts of failing to pay child support. He went to trial on the defense that he was unemployable due to brain trauma from a car accident. The trial court excluded testimony from a psychologist pertaining to Phillips’s employability due to brain trauma because the psychologist’s report did not reach a conclusion about that topic. “The report contains details of Phillips’ memory struggles, references to the 1989 car accident, and ultimate psychological diagnoses; however, the report contains no details of medical testing, medical diagnoses or conclusions about brain trauma to Phillips or his employability.” (¶21). Thus, the trial court appropriately exercised its discretion when it concluded that defense counsel did not lay a foundation for the excluded testimony. (¶¶20-21). Nor was defense counsel deficient for failing to assure the psychologist reached such an opinion and did so on a proper foundation; although the psychologist couldn’t expressly state his opinion that Phillips was unemployable, he provided the jury with ample details about Phillips’s mental state and struggles with maintaining employment, and the jury was amply aware of Phillips’s struggles from other witnesses as well. Thus, Phillips has failed to show that the inclusion of the psychologist’s opinion prejudiced his defense. (¶¶30-31).

As to Phillips’s allegation that his lawyers failed to present a plea offer he would have accepted: At a Machner hearing both of Phillips’s trial lawyers testified that they did not specifically recall receiving the State’s plea offer, but that their normal practice is to present such offers to their clients; neither attorney presented a reason as to why he would not have followed his normal practice in this case. The postconviction court found the lawyers credible and Phillips incredible, saying his allegation was a case of “buyer’s remorse.” Based on this credibility determination, the circuit court’s rejection of the claim is affirmed. (¶22-26).

Next, as to other ineffective claims against trial counsel (including failure to make numerous objections to inadmissible testimony, some of which even the court of appeals thinks should have been excluded (¶32 n.6)), the circuit court correctly declined to grant him a Machner hearing on those claims because Phillips either fails to show he was prejudiced to by the deficiency (¶¶33-34) or fails to develop an argument as to how these alleged deficiencies prejudiced his defense (¶¶32, 35-37).

Finally, Phillips isn’t entitled to resentencing. Given that Phillips was just convicted of six counts of failure to pay child support and had been convicted twice before of the same offense, it wasn’t inaccurate for the sentencing court to refer to him as a “deadbeat father.” (¶40). Nor were the sentencing court’s references to the money from Phillips’s settlement from the car accident inaccurate. (¶41). Last, the sentencing court’s finding that Phillips’ trial testimony was “a lie, at the least it certainly was an attempt to mislead the jury,” was not inaccurate because it is supported by the record. (¶42).

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