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SCOW to address ineffective assistance of counsel involving guilty pleas

State v. George E. Savage, 2019AP90-Cr, petition for review of an unpublished option granted, 5/19/20, case activity

Issues (adapted from the State’s petition for review):

1.  Under Hill v. Lockhart, 474 U.S. 52 (1985), when a defendant claims that he received ineffective assistance of counsel in connection with a guilty plea, he must prove that but for his lawyer’s deficient performance  he would have proceeded to trial.  More recently, Lee v. United States, 137 S. Ct. 1958 (2017) held that a defendant can, in some circumstances, prove Strickland prejudice even without a reasonable probability of success at trial.  Given the facts of this case, did Savage prove that he was entitled to withdraw his guilty plea even though he couldn’t show a reasonable probability of success at trial?

2.  State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89 holds that a court cannot decide an ineffective assistance of counsel claim if a Machner hearing has not occurred. In Savage’s case, the circuit court did conduct a Machner hearing,  but the court of appeals reversed and remanded on both deficient performance and prejudice because the circuit court misapplied State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787. Should the court of appeals have affirmed under the rule that the court of appeals may sustain a circuit court decision if there are facts in the record to support it?

It’s a good thing the State’s petition for review is available for your reading pleasure. We’ve never seen a 3-page statement of the issues for review (especially when there are only 2 issues), but there is always a first, and this petition appears to be it.

Savage, a homeless sex offender, pled guilty to failure to comply with sex offender registry requirements. He claimed ineffective assistance of counsel because his lawyer failed to discuss a Dinkens defense with him. Under State v. Dinkins, 2012 WI 24, ¶ 5, 339 Wis. 2d 78, 810 N.W.2d 787, a sex offender can’t be convicted for violating reporting requirements if he was unable to provide the required information but made reasonable attempts to provide it. Savage argues that if he had known of this defense he would not have pled guilty, he would have gone to trial. The State contends that under Hill and Lee Savage could not prove prejudice because he cut off his GPS bracelet and absconded from probation, thus showing an intent not to comply with registry requirements.

As noted in our post on the court of appeals opinion, there’s also an issue about whether Dinkins is settled law and whether a lawyer can be ineffective based on law that isn’t settled. In other words, this could shape up to be an important case on ineffective assistance of counsel.

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