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Ineffective Assistance – Prejudice; Trial Court Exercise of Discretion – Over-Reliance on Party’s Submission

State v. Juan Angel Orengo, 2011AP137, District 1, 2/28/12

court of appeals decision (not recommended for publication); for Orengo: Robert R. Henak; case activity

Counsel’s failure to attempt severance, from a drug charge, of a felon-in-possession-of-weapon count, didn’t amount to ineffective assistance.

¶8        Wisconsin law recognizes that guns and drug dealers go together.  See State v. Guy, 172 Wis. 2d 86, 98, 492 N.W.2d 311, 316 (1992) (“[T]hose involved in drug dealing often keep weapons handy.”); State v. Richardson, 156 Wis. 2d 128, 144, 456 N.W.2d 830, 836 (1990) (“drug dealers and weapons go hand in hand”).  Further, the trial court dismissed the gun charge at the close of the State’s case because there was no evidence directly connecting the gun to Orengo.  What Orengo got was arguably even better than a severance; the trial court put its imprimatur on his innocence of unlawfully possessing the gun.  There was no prejudice.

It follows that counsel wasn’t ineffective for failing to negotiate dismissal of “the gun charge in exchange for a stipulation about the gun that would not have let the jury learn that he was a convicted felon.  See State v. Veach, 2002 WI 110, ¶¶124–128, 255 Wis. 2d 390, 440–442, 648 N.W.2d 447, 472–473 (Where a defendant’s status is an element of the crime, the defendant may stipulate to that status, which should not be revealed to the jury.).” Aside from inability to show that the prosecutor would have agreed to such a stipulation, Orengo can’t show prejudice in light of the trial court’s eventual dismissal of the gun charge for lack of proof, and the jury’s acquittal on a count. (¶9)

¶13      Orengo argues the trial court erroneously exercised its discretion when it largely adopted the State’s brief in its order denying his Wis. Stat. § 974.06 motion:

The court denies the defendant’s motion based on the analysis set forth in the State’s response and adopts its brief as its decision on this matter.  …

(Emphasis added.)  We agree with Orengo that judges must not only make their independent analyses of issues presented to them for decision, but should also explain their rationale to the parties and to the public beyond merely parroting one side’s submissions.  See Trieschmann v. Trieschmann, 178 Wis. 2d 538, 541–542, 504 N.W.2d 433, 434 (Ct. App. 1993) (Improper to “simply accept[] [a party]’s position on all of the issues of fact and law without stating any reasons for doing so[.]”); cf. Wis. Stat. § 751.10 (“The supreme court shall decide all cases in writing.”); Wis. Stat. § 752.41(1) (“In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.”).  Although the trial court here appeared to give its reasons, it also appeared to cobble those reasons from the State’s submissions.  We suggest that more is required.  See DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990). Since our review of the trial court’s denial of Orengo’s postconviction motion is de novo, however, the trial court’s apparent adoption of the State’s brief is of no consequence.

The same issue was discussed very recently, with the same result, in State v. Demian Hyden McDermott, 2012 WI App 14, ¶9 n. 2.

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