Issues (composed by On Point)
1. When assessing the prejudice of defense counsel’s deficient performance in a multiple-count jury trial, may a court divide the prejudice analysis on a count-by-count basis, finding prejudice warranting relief on some counts from the single trial but not others?
2. If a party fails to file a petition for review following an unfavorable Court of Appeals ruling on a particular argument, may the party re-litigate the same question in a second appeal of the same case?
As explained in our post on the unpublished court of appeals decision in this case, Sholar was charged with five counts of sex trafficking and one count of sexual assault. At trial, defense counsel allowed admission of a 181-page report containing the contents of Sholar’s cell phone (including 1,400 text messages and photos of girls and women in suggestive poses) and then failed to object again when the whole report went to the jury during deliberations. The state conceded defense counsel performed deficiently but argued Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.
The first issue, then, is whether it’s proper to divide the question of prejudice into a count-by-count analysis. There’s no case law directly answering this question. And it matters to a defendant seeking a whole new trial in a multi-count case, as it means the difference between making the defendant prove counsel’s error had enough impact to undermine confidence of the trial as a whole versus the higher burden of undermining confidence in the result on each count. Because the prejudice standard for ineffective assistance claims is not an outcome-determinative standard, but is instead about the reliability of the proceedings, Strickland v. Washington, 466 U.S. 668, 694 (1984), it is arguable that, where a single jury heard evidence related to multiple counts, the reliability of the trial is undermined if counsel’s deficient performance was sufficient to call into question at least one of the convictions. And that approach seems more consistent with the approach taken in multi-count cases where counsel’s performance involved multiple deficiencies that, considered cumulatively, established prejudice, even though the state’s evidence was stronger on some counts than others, see, e.g., State v. Honig, 2016 WI App 10, ¶46, 366 Wis. 2d 681, 874 N.W.2d 589. We’ll see if the supreme court agrees.
There’s a backstory to the second issue. As discussed in the court of appeals’ decision being reviewed, this was Sholar’s second appeal (so we’ll call it Sholar II). The first appeal challenged the circuit court’s denial of his postconviction motion without a hearing. The court of appeals reversed, and ordered a the circuit court to hold a Machner hearing. (Sholar I, 2014AP1945, unpublished slip op. (June 30, 2015)). At the Machner hearing the circuit court found trial counsel deficient, but found prejudice only on the sexual assault charge. Sholar appealed again, arguing the decision in Sholar I foreclosed the circuit court from revisiting prejudice, for unless Sholar had satisfied the court of appeals there was prejudice there’d have been no need for a Machner hearing. While conceding its decision in Sholar I “was not a model of clarity,” the court of appeals said it didn’t rule on prejudice on all counts, but only that there might be prejudice, “at least as to the sexual assault charge” (Sholar I, ¶40), and that the circuit court should decide deficiency and prejudice for itself. (Sholar II, ¶¶15-20).
Sholar takes issue with this conclusion, asserting the prejudice determination needed no further fact-finding for the circuit court, making the court of appeals conclusion a done deal. Further, Sholar I remanded for a hearing on all counts. If the state thought Sholar I was unclear as to whether it found prejudice resulting in a new trial on all counts or just one, it should have filed a motion to reconsider or a petition for review. It did neither, and waited until remand to assert that the Sholar I was unclear and open for interpretation. Thus, Sholar posits, the state forfeited its right to argue prejudice was established on only one of the counts. The supreme court doesn’t hesitate to hold a party can’t raise claims before it if they were not raised in the petition for review, response to the petition for review, or cross petition, e.g., State v. Smith, 2016 WI 23, ¶41, 367 Wis. 2d 483, 878 N.W.2d 135; State v. Sulla, 2016 WI 46, ¶7, n.5, 369 Wis. 2d 225, 880 N.W.2d 659; this case presents the opportunity to address the ramifications on subsequent proceedings in the circuit court and court of appeals when the losing party on a first appeal does not file a petition for review.