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Defendant failed to show why he would have gone to trial but for counsel’s deficient performance

State v. Shaun M. Clarmont, 2014AP1043-CR, District 3, 5/19/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Even if trial counsel failed to investigate a defense to the charge to which Clarmont pled, Clarmont has not shown why he would have gone to trial and face the possibility of multiple convictions, including for two felony offenses, rather than accept a plea offer of a single misdemeanor conviction along with a very favorable sentencing recommendation from the state.

Based on allegations made by D.C., his estranged wife, Clarmont was charged with growing marijuana, possession of paraphernalia, disorderly conduct, and battery. D.C. later alleged Clarmont sent her an email in violation of the no-contact condition of his bond, resulting in a new charge of felony bail jumping. Clarmont ultimately accepted what his trial lawyer termed a “sweet deal”: All the charges in the first case were dismissed and read in; the bail jumping in the second case was reduced to a misdemeanor, and the state recommended a withheld sentence, no jail time, and probation under § 973.11‘s VIP program. (¶¶2-4, 10).

Postconviction, Clarmont moved to withdraw his plea, alleging his trial lawyer failed to investigate his defense to the felony bail jumping. He presented evidence showing the IP address from which the email was sent was assigned to a computer in the couple’s residence, where D.C. was now living alone. This was “powerful evidence” in Clarmont’s favor on the bail jumping (¶11) and could affect D.C.’s credibility regarding the charges in the first case; but it wasn’t completely exonerating because Clarmont had access to the residence. Also, trial counsel credibly testified that Clarmont never told him a defense to the bail jumping would have led him to go to trial on both cases. (¶¶5-12, 20).

Assuming trial counsel was deficient, the court of appeals holds there was no prejudice. Under the standard in Hill v. Lockhart, 474 U.S. 52 (1985), and compared to the prejudice showing made in State v. Dillard, 2014 WI 123, 358 Wis. 2d 543, 859 N.W.2d 44, Clarmont hasn’t shown why he would have gone to trial had he known of the IP address evidence at the time of his plea:

¶22      While Clarmont expresses confidence in the efficacy of the IP address information drastically changing the results of both trials, we are not so convinced. The IP information did not provide Clarmont with a complete defense to the felony bail jumping charge; it certainly did not provide him a complete defense for the one felony and multiple misdemeanor charges in case No. 2012CF188. The IP evidence, while undoubtedly persuasive, is not the dispositive fact Clarmont claims. As the circuit court noted, it is not beyond reasonable belief that Clarmont could have returned to the Lena address to send the email. Relevant to this point, it is undisputed that Clarmont, not D.C., drafted the email at issue. Especially given this fact, a jury could reasonably reject Clarmont’s claim that D.C. purposely accessed his email account from her home, stumbled upon an email he wrote that was sitting in his “Drafts” folder, and then sent it to herself, all out of malice. Thus, even with the additional IP information, there would still be a credibility contest between D.C. and Clarmont as well as reasonable competing inferences from all the evidence for the jury to consider. As such, and applying Hill, we cannot “predict [that the missing IP address] evidence likely would have changed the outcome of a trial,” such that its existence “would have led counsel to change his recommendation as to the plea.” See Hill, 474 U.S. at 59.

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¶24      Meanwhile, Clarmont failed to persuasively explain via postconviction testimony or now on appeal why he would have chosen to risk going to trial and being convicted on charges of felony bail jumping, felony THC manufacturing, and several misdemeanors after he was presented with, as counsel described it, a “sweet deal” of a no contest plea to a single misdemeanor along with generous sentencing recommendations by the State.[8]See State v. Bentley, 201 Wis. 2d 303, 314, 548 N.W.2d 50 (1996) (finding instructive the Seventh Circuit Court of Appeals’ holding that “[a] specific explanation of why the defendant alleges he would have gone to trial is required”) (citation omitted). Clarmont latches on to the now-known weakness in the State’s case regarding the felony THC manufacturing charge, but Clarmont does not cite to anything in the record to show his awareness of that fact prior to his acceptance of the plea offer.[9] Meanwhile, Clarmont’s postconviction testimony, as well as his briefs on appeal, conspicuously undertake no consideration of the substantial benefits of the State’s plea offer. Given the record, we cannot conclude it is reasonably probable that Clarmont would have forgone the offered plea agreement, even with the benefit of the missing IP evidence, given the particulars of the plea deal as weighed against his charges and potential penalties.

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