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Ineffective Assistance; Sentencing – Review – Harsh and Excessive

State v. Burt Terrell Johnson, Jr., 2010AP2654-CR, District 1, 9/13/11

court of appeals decision (not recommended for publication); for Johnson: Sara Heinemann Roemaat; case activity

Counsel did not perform deficiently.

  1. Decision not to make opening statement was reasonable strategy, given that the defense didn’t plan to call any witnesses but instead intended “to put the State to its proof,” ¶21.
  2. Failure to object to State’s closing argument characterizing what the victim “saw” would have been futile, given wide latitude afforded counsel in closing; the State didn’t mischaracterize the victim’s testimony, but instead drew appropriate inferences, ¶¶24-26.
  3. Counsel’s closing argument didn’t concede guilt, but instead conceded only those facts that were undisputed, “a reasonable strategy likely made to gain credibility in front of the jury,” ¶30, citing Underwood v. Clark, 939 F.2d 473, 474 (7th Cir.1991). For authority to the effect that counsel isn’t per se ineffective for conceding guilt during closing argument, see State v. Gordon, 2003 WI 69, ¶¶24-30, 262 Wis. 2d 380, 663 N.W.2d 765; and State v. Silva 2003 WI App 191, ¶¶19-20, 266 Wis. 2d 906, 670 N.W.2d 385.
  4. Counsel didn’t perform deficiently in failing to hire an expert as to whether the perpetrator actually “entered” the structure, thereby satisfying that element of burglary: “Common sense dictates that whether pushing on a door with a certain amount of force necessarily required entry past the door’s threshold was well within the range of ordinary training or intelligence,” ¶34.

Sentence of 8 years (4 confinement, 4 supervision) was based on appropriate exercise of discretion; test recited, ¶¶35-37.

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