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Defendant must testify to prove that, but for counsel’s advice to plead, he would have gone to trial

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.

While investigating a claim of child sexual assault against Jeninga, police seized his cell phone and obtained a search warrant to search it. They found child porn. The State charged Jeninga with 1 count of repeated child sexual assault and 10 counts of possession of child porn and filed a successful motion to join the two cases.  On the advice of trial counsel, Jeninga pled.

Postconviction, Jeninga argued that his trial was ineffective for failing to move to suppress the evidence found on his phone. The State’s search warrant failed to state probable cause. It was over broad. And it contained intentional or reckless omissions and misrepresentations of fact. The trial court conducted a hearing where Jeninga called his trial lawyer, who testified that she had no strategic reason for failing to file a suppression motion. She thought one would be meritless. She also testified that while Jeninga had a strong defense to the child sexual assault charge, the court’s decision to join the two claims dramatically changed the case so she advised him to take a plea deal, and Jeninga did.

A court may deny a claim for ineffective assistance of counsel claim for the failure to prove either deficient performance or prejudice. Here, the court of appeals held that Jeninga failed to prove prejudice because he himself did not testify that he would have gone to trial, rather than plead, if his lawyer had filed a successful post conviction motion.

¶18 At bottom, Jeninga asks us to assume, based on the general circumstances, that he would not have pled to any charge and, instead, would have gone to trial, based solely on trial counsel’s testimony regarding her beliefs, merely suggesting what his state of mind and thinking might have been. Although Jeninga’s postconviction motion alleged that he would not have pled, Jeninga provided no objective facts that evidenced his thinking and reasoning. Simply put, there is no record evidence that demonstrates from Jeninga himself that he would not have pled and instead would have gone to trial. Therefore, we conclude that Jeninga did not satisfy Strickland’s prejudice component.

¶21 . . . Had Jeninga testified that he would not have pled and explained why, trial counsel’s testimony might have supported Jeninga’s statements, as in Dillard, 358 Wis. 2d 543, ¶102 (“Trial counsel’s testimony and written communications with the defendant were consistent with the defendant’s account of the defendant’s state of mind and the events leading up to the plea agreement.”) (emphasis added). But, standing alone, trial counsel’s testimony as to her belief that joinder should have affected Jeninga’s decision is “opinion-subjective” rather than “factual-objective” on the topic of Jeninga’s pertinent thinking because it is trial counsel’s subjective opinion and cannot by itself establish what Jeninga was in fact thinking.  (citing State v. Saunders, 196 Wis. 2d 45,  51, 538 N.W.2d 546 (Ct. App. 1995).

Yes, Jeninga pointed out that a successful suppression motion would have left the State with zero evidence of possession of child porn. No one would plead to a charge for which the State had no evidence. To this, the court of replied that maybe Jeninga would have given that the State reduced the sexual assault charge from 1st to 2nd degree, which resulted in a 20-year reduction in penalty exposure. The court couldn’t know unless he testified. Opinion, ¶23.

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