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SCOW to review IAC, sentencing, and cross-appeal issues

State v. Anthony R. Pico, 2015AP1799-CR, petition for review granted 10/10/17; case activity (including briefs)

Issues (composed by On Point):

1. Did the Court of Appeals apply the proper standard of review to the trial court’s findings of fact regarding trial counsel’s conduct and strategy?

2. Did trial counsel perform deficiently by failing to investigate Pico’s serious head injury, and did that deficient performance prejudice Pico in pretrial proceedings and at trial?

3. Did the sentencing court impermissibly burden Pico’s privilege against self-incrimination?

4. Did the Court of Appeals err in concluding that Pico waived issues not raised by cross-appeal?

5. Is it permissible for a postconviction court to admit and consider expert testimony by another criminal defense attorney regarding the conduct of trial counsel?

This is a review of a lengthy unpublished court of appeals decision that, over a strong dissent by one judge, reversed a circuit court’s grant of a new trial based on ineffective assistance of counsel. Our post on the court of appeals decision lays out the basic facts and issues, so we won’t repeat them here. As should be obvious from the list of issues, this will be an important decision that could affect postconviction and appellate practice in multiple ways.

First, the supreme court’s resolution of issues 1 and 2 could affect the handling of ineffective assistance of counsel claims by condoning the error made by the court of appeals’ majority—namely, as described by the dissenting judge, “placing itself in the role of the trial judge” and reaching its own findings about trial counsel’s deficient performance. (Court of appeals decision, ¶¶123-26).

Issue 5 could have some impact on IAC claims as well, though judging from the rarity of references in the case law so-called Strickland experts aren’t commonly used in Wisconsin. This issue was raised by the state in its response to Pico’s PFR and added to the list of issues by the court. The state contends that such expert testimony is irrelevant, as Strickland v. Washington itself said there are multiple ways to provide effective assistance, 466 U.S. 668, 689 (1984), and that the court itself is the only expert on the law of what is deficient performance, citing State v. McDowell, 2003 WI App 168, ¶62 n.20, 266 Wis. 2d 599, 669 N.W.2d 204. Federal courts have said such expert testimony is not generally necessary, e.g., Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998); Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010), but that’s not to say it’s impermissible, as the state asserts here.

As to issue 4, regarding whether Pico needed to file a cross appeal to preserve certain issues, Rob Henak posted a comment to our post that explains the flaws in the court of appeals’ conclusion that Pico did need to cross appeal. The supreme court’s decision on this question has the potential to clarify (or complicate) appellate practice generally.

Finally, the decision on issue 3 may help clarify whether the sentencing judge violated Pico’s right not to incriminate himself by expecting Pico to acknowledge his guilt at sentencing based on the jury’s verdict. The sentencing court said it was considering whether Pico “demonstrate[d] remorse” and that it was “offended” that Pico didn’t have “the courage to recognize” his culpability.

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