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IAC claims not raised in first appeal can’t be revived on remand

State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)

Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.

This is the second appeal of Dengsavang’s conviction at jury trial of attempted homicide, armed robbery, and burglary. In his first appeal, Dengsavang persuaded the court of appeals that he was entitled to the Machner hearing that the postconviction court had denied him. When that hearing was held, the circuit court found that trial counsel had reasonable strategic grounds for failing to object to testimony regarding an excluded crime lab report concerning the match, or lack thereof, between shoe prints found at the scene and Dengsavang’s own shoes. It also held that even if counsel’s performance was deficient, there was no prejudice, because the discussion of the report was a minor part of the evidence concerning the shoe prints. The court of appeals agrees:

Numerous exhibits of shoe print photos were admitted. Additionally, the trial court made it clear that the only limit on the shoe print evidence pertained to the State using the crime lab report in its case in chief: “I’m not making any limitations on the prints themselves or the shoes themselves .… The only thing that’s new is this expert analysis of the prints.”

Thus, trial counsel knew that the jury was very aware of the shoe prints when he elicited the testimony about the crime lab analysis. And he testified at the Machner hearing that his general trial defense strategy was to show that Dengsavang was innocent, that the officer had identified the wrong person, that there was no direct evidence connecting him to the crime, and that he was simply caught in the wrong place at the wrong time. He testified that he asked questions of Detective Hudson about the crime lab report to show that “there are millions of Nike shoes out there and they cannot specifically say these are Mr. Dengsavang’s.” Accordingly, his opening the door to the crime lab report was consistent with his trial defense strategy overall and was a reasonable strategy.

(¶¶25-26).

The court then determines that Dengsavang’s other IAC claims–alternative bases for excluding the shoe print report testimony, as well as counsel’s failure to impeach a witness regarding alleged inconsistencies in her description of her shooter–are not properly before it, because they were raised inadequately, or not at all, in his first appeal challenging the denial of a hearing.

Our mandate here was clear. We agreed with Dengsavang that on remand he was entitled to trial counsel’s testimony on whether counsel had a “reasonable strategic basis … for opening the door to evidence of the shoe-print report.” Dengsavang, No. 2013AP1573-CR, unpublished slip op., ¶17 (WI App Apr. 29, 2014). This mandate was not changed in the Errata. Dengsavang had offered no argument other than the shoe print issue as a basis for an ineffective assistance claim. The State had not had a chance to respond to any other argument, and, hence, the Machner hearing’s scope was specified as limited to the shoe print issue. This court directed the trial court to conduct a Machner hearing on the “questioning that opened the door to allowing the otherwise excluded testimony.” Dengsavang, No. 2013AP1573-CR, unpublished slip op., ¶16 (WI App Apr. 29, 2014).

 (¶40).

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