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Defense counsel wasn’t ineffective for recommending an impossible sentencing disposition

State v. Toby J. Vandenberg, 2018AP1810-CR, District 3, 12/23/19 (not recommended for publication); case activity (including briefs)

Vandenberg pled no contest to OWI 7th. The state agreed to cap its sentencing recommendation at four years of confinement and four years of extended supervision. At sentencing Vandenberg’s lawyer, while saying there was “a strong argument there’s a mandatory minimum of three years’ incarceration,” nonetheless argued for probation. (¶¶6-11). Was counsel ineffective for making that argument? Nope.

There’s more than just “a strong argument” that there’s a mandatory minimum of three years’ confinement for OWI 7th. A quick look at § 346.65(2)(am)6. and State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467, makes it certain beyond cavil that a court must impose at least three years of confinement. As the court of appeals notes, if trial counsel researched the law and came to a different conclusion, his legal conclusion was unreasonable. (¶¶23-24).

Nonetheless, the court says, given “the context and tone” of counsel’s argument, it was a reasonable strategy to get the court to  impose the mandatory minimum three years instead of the four years the state was recommending:

¶26     …[A]t the sentencing hearing, [Attorney] Reetz acknowledged that “significant case law” precluded the circuit court from placing Vandenberg on probation. Reetz also requested that “to the extent the law prevails,” the court impose the minimum three-year period of initial confinement, as opposed to the four years recommended by the State. By framing his argument in that manner, Reetz made clear that he was seeking the imposition of the statutory mandatory minimum period of confinement, or, alternatively, that Vandenberg be placed on probation.

¶27     On appeal, Vandenberg ignores the former aspect of Reetz’s argument. In doing so, he tacitly asks us to ignore the totality of the circumstances surrounding Reetz’s sentencing argument. Because we may not do so, we conclude that Reetz’s probation argument, while arguably unreasonable standing alone, did not render Reetz’s entire sentencing argument deficient.

¶28     Instead, Reetz’s probation argument was—as he put it at the Machner hearing—a “swing-for-the-fence argument” that he hoped would, at worst, cause the circuit court to “split the baby” and impose the mandatory minimum period of confinement. Although the court ultimately did not do so, Reetz’s strategy was not lost on the court, as it stated at the postconviction hearing that, “I felt like he was arguing for three years, and then he—the only way he could take a position that was more lenient than that was to somehow argue, you know, probation.” As such, we cannot say that Reetz pursued an overall strategy at sentencing deprived Vandenberg of his constitutional right to the effective assistance of counsel.

An argument for a disposition that is unlawful and impossible to impose is not a legitimate argument, but an ignorant or crazy one; so it beggars belief that such an argument could bolster a request for the actual mandatory minimum. If the most lenient sentence legally available is three years, the reasonable argument for that sentence must focus all its power on getting that result rather than diluting itself with the offering of a chimera.

Vandenberg also argues Reetz was deficient for failing to inform the circuit court about his good character and positive social history or other mitigating factors, and instead highlighting significant negative factors. (¶¶29-30). But this, too, was part of Reetz’s reasonable strategy:

¶32     Reetz made clear at the Machner hearing that his overarching strategy at sentencing was driven by his familiarity with the circuit court. Based upon that familiarity, he believed that the court would be “receptive to arguments related to addiction.” Accordingly, he chose to avoid “sugarcoating” the bad facts of the case by emphasizing the positive aspects of the PSI and to instead focus on Vandenberg’s struggle with his disease. More specifically, he tried to argue that Vandenberg’s struggle with alcoholism needed to be treated in a manner that it had not been treated previously—i.e., in an intensive rehabilitation program outside of prison. In other words, Reetz pursued an argument that he believed— based upon his personal experience with the sentencing court—would result in the minimum period of confinement.

Vandenberg argued that the alleged deficiencies in trial counsel’s sentencing argument meant he effectively abdicated his role and completely denied Vandenberg the right to counsel, so prejudice should be presumed, citing United States v. Cronic, 466 U.S. 648, 659 (1984). Given its conclusion that trial counsel wasn’t deficient, the court doesn’t need to address prejudice, though it does. Besides holding that Cronic doesn’t apply (no surprise there, given the court found trial counsel acted reasonably), the court finds there was no prejudice (again, not a surprise, since in the court’s eyes there wasn’t even an unprofessional error to affect the proceedings). (¶¶35-43).

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