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Ineffective assistance of counsel — failure to demand speedy trial, communicate with defendant, and impeach the victim. Sentencing — unduly harsh sentence.

State v. Jerry Lee Carson, 2012AP2616-CR, District 1, 9/17/13; court of appeals decision (not recommended for publication); case activity

Ineffective assistance of trial counsel

Carson, convicted of second degree recklessly endangering safety, claimed his trial lawyer was ineffective on various grounds. The court of appeals holds counsel was not ineffective for failing to:

  • Demand a speedy trial. Carson was not prejudiced by the delay beyond the statutory speedy trial deadlines. He received pretrial credit for all the time he was in custody before trial and has not demonstrated that the result of the trial would have been different had counsel filed the demand. (¶¶15-17).
  • Communicate more with Carson before trial, which Carson claims would have ensured he gave the proper answer when asked how many prior convictions he has and avoided testifying inconsistently with a statement he gave one of the police officers. Assuming counsel was deficient, there’s no prejudice. Carson was present in court when the parties stipulated to the number of priors and so should have been aware of the answer to give, and the officer who took Carson’s statement was only one witness among several others, and their testimony provided ample evidence to convict. (¶¶18-20).
  • Impeach the victim with inconsistent preliminary hearing testimony. The inconsistency complained of dealt only with a battery charge, which was ultimately dismissed. (¶¶21-22).
  • Present a defense with “a discernible trial strategy.” Again, if counsel was deficient, Carson was not prejudiced: “Given that Carson was acquitted on the dangerous weapon penalty enhancer and that the jury was hung on the battery charge, leading to a dismissal of that charge, we can hardly conclude that trial counsel did not present an effective defense.” (¶23).

Sentencing

Carson’s sentence was not unduly harsh, as the circuit court properly exercised its discretion in concluding Carson’s “escalating pattern of domestic violence” required a maximum sentence. (¶¶24-27).

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