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Ineffective assistance, newly discovered evidence claims fail

State v. Robert C. Washington, 2018AP1771-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)

Washington was convicted of first degree reckless homicide and first degree reckless injury for shooting his two sons, killing one and injuring the other. He argues his lawyer was ineffective for advising him to plead without discussing possible lesser included offense possibilities and for failing to advocate for him at sentencing. He also argues newly discovered evidence shows the shootings were accidental, not reckless.

The newly discovered evidence issue involves testimony of W.W., the injured son, that he threw a basketball at Washington during the incident, which caused Washington to discharge accidentally the gun he was holding. (¶¶2, 7). But this isn’t new evidence, says the court:

¶19     …. W.W. was present at the time of the shooting incident and gave a statement to police. Whether or not W.W. threw a basketball at his father was known to W.W. and Washington at the time of the incident. Moreover, Washington consistently maintained that W.W. threw a basketball in his direction, ultimately causing the gun to discharge. W.W.’s ultimate corroboration of Washington’s defense is not newly discovered evidence—it is simply a different version of events.

The advice about the potential of seeking lesser included offense instructions at trial is also easily dispatched by the court of appeals. Trial counsel’s testimony at the Machner hearing that, in the course of their 19 pretrial meetings in the jail, they would have discussed this issue, and the circuit court found the lawyer more credible than Washington, who testified the issue was never discussed. (¶¶5-6, 8-10, 15-16).

As to trial counsel’s sentencing advocacy, or lack thereof, here’s what trial counsel argued at sentencing (¶21):

     This is a very, very, very tragic incident. And Mr. Washington is responsible for that. There’s no two ways about it. I don’t care what the hell he says why he did it. It’s totally unacceptable.

     ….

     I submit to the Court that Mr. Washington is a threat to no one but himself in this particular case and he’s going to be removed shortly. But I think for a just sentence, there’s a message that needs to be sent…. [I]t’s about the people who’s handling the guns in this case.

     ….

     With respect to a sentencing recommendation, Judge, I think the PSI writer tried to document it as best she could with respect to the factors that the Court must use that would help the Court consider.

     Like the [State], I’m going to punt.

With “advocacy” like that, it might not surprise you to learn Washington is serving 52 years in prison (41 in and 11 out). (¶4). No matter, though. “Assuming, without deciding, that trial counsel’s comments at sentencing constituted deficient performance, we conclude that Washington was not prejudiced by the deficiency.” (¶22).

¶23     Postconviction, the circuit court found that even if counsel had been more “supportive,” “there is not a reasonable probability that the court would have imposed anything other than the sentences it did impose.” The court stated that it considered the facts of the case, the PSI, Washington’s statement at sentencing, and Washington’s wife’s statement at sentencing. The court noted that it “did not have to accept [Washington’s] ‘gun just went off’ version for purposes of sentencing.” Therefore, counsel did not render ineffective assistance because even if he had advocated more strongly for Washington, the sentence would have remained the same. ….

Ah, the magic of postconviction sentencing review!

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