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Failure to tell defendant he might get different judge not ineffective

State v. Julius Lee Sanders, 2014AP2644, 6/6/2017, District 1 (not recommended for publication); case activity (including briefs)

Julius Sanders appeals from his judgment of conviction and the denial, without a hearing, of his postconviction motion.

His motion claimed that his counsel was ineffective for two reasons–he failed to investigate allegations Sanders made about the alleged victim, and he convinced Sanders to plead by suggesting the then-presiding judge would give him probation, without letting Sanders know that she might be rotated off the case (which she was, after which Sanders got substantial prison time).

The court easily rejects the first claim as unsupported by the facts:

The trial court appropriately denied Sanders’ request for a hearing because he failed to provide sufficient information and develop this argument in his postconviction motion so that the trial court could fully assess his claims. Sanders did not provide any records regarding the incidents where he claims that he was falsely accused by K.H., nor did Sanders establish that the allegations were actually false. Additionally, Sanders provided no information to support his allegations of mental health issues on the part of K.H.

(¶20).

The court also easily rejects the second claim, but this ease is achieved by ignoring the argument that Sanders is actually making in favor of knocking down a straw man. The court says that “merely wanting a different judge for sentencing because that judge may be more lenient is purely speculative, and thus would not be considered to be a fair and just reason warranting plea withdrawal.” (¶24). Fair enough, but Sanders isn’t saying that he just “wanted” a different judge–he’s saying his lawyer told him he would most likely be sentenced by a particular judge, and that this judge would likely give him probation because of the lawyer’s relationship with her. The lawyer turned out to be wrong; is this sort of misadvice deficient performance? We’ll never know, because the court of appeals doesn’t see fit to to engage with the issue. (Nor will we know whether Sanders’s recounting of events is true, because he was denied a hearing and that denial has now been affirmed).

Sanders raises the same facts as a claim that his plea was not knowing, voluntary and intelligent, but the court rejects those for similar reasons.

He also claims that his attorney had a conflict of interest by the time of his sentencing due to his representation of another defendant. The story is complicated and a little confusing but, in the court’s view, doesn’t amount to a real conflict.  (¶¶26-31).

Sanders finally challenges a condition of his extended supervision that he not have contact with his kids. The court of appeals affirms the trial court’s conclusion that, though he had never been charged with any violence toward them, he does present a risk to them such that the condition is valid. (¶¶39-41).

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