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Court of appeals says conclusory ineffective assistance of counsel claim properly denied without a hearing

Dane County DHS v. N.C., 2017AP788, District 4, 9/21/17, District 4 (1-judge opinion, ineligible for publication); case activity

N.C. filed a postdisposition motion challenging the circuit court’s termination of her parental rights to M.M. She argued, among other things, that her trial lawyer was ineffective in failing to have the termination order entered as voluntary, rather than involuntary.

Applying Strickland‘s two-part test for ineffective assistance of counsel and the State v. Bentley, 201 Wis. 2d 303, 309, 548 N.W.2d 50 (1996)(court may deny IAC based on conclusory allegations without a hearing), the court of appeals held:

¶12 . . . N.C. failed to allege facts, that if true, establish that her trial counsel was deficient for failing to “raise the prospect” of a voluntary termination, or that N.C. was prejudiced by her trial counsel’s failure to do so. In particular, N.C. has failed to point to any facts that N.C. was interested in proceeding with a voluntary termination at any time. N.C. has also failed to point to any facts, or legal authority, that had N.C.’s trial counsel “raise[d] the prospect of a voluntary termination,” the proceeding would have been converted to a voluntary termination, or that doing so would have made a difference. Accordingly, I conclude that the circuit court did not erroneously exercise its discretion when it denied N.C.’s amended motion without a hearing

 

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