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Ineffective Assistance – Sentencing; Failure to Request Substitution

State v. Miller X. Lark-Holland, 2011AP791-CR, District 1, 2/28/12

court of appeals decision (not recommended for publication); for Lark-Holland: Byron C. Lichstein; case activity

¶7        Lark-Holland’s first complaint is that his trial lawyer did not emphasize the mitigating factor that he said he was forced into committing the robbery, and also made several comments that he says undercut his character.  …  These comments, however, when read in full context, show an effective attempt to argue factors that might mitigate a potentially severe sentence.

¶10      Finally, Lark-Holland could not just ignore that armed robbery with a gun was a very serious crime; Lark-Holland’s lawyer would have undercut her own credibility and, therefore, Lark-Holland’s chance of getting a reasonable sentence, had she done so.  Further, the lawyer spent a substantial amount of time at sentencing telling the trial court about Lark-Holland’s positive qualities, pointing out that he got good grades at school, was on sports teams, was an active member of his church, and did not have a criminal record.  She also noted his remorse and that he cooperated when he was arrested.  Thus, she told the trial court: “You have more positive qualities to start the fabric of discipline and rehabilitation with Mr. Lark-Holland than … anybody I worked with this year.”  She would have undercut all of this had she tried to soft-soap the seriousness of armed robbery.  Her sentencing arguments were thus within the “wide range of professionally competent assistance.”  See Strickland, 466 U.S. at 690.

¶12      Lark-Holland also claims his lawyer was ineffective because she did not advise him to bump Judge Konkol, who, according to Lark-Holland, is known to impose longer sentences than do some other judges.  To establish ineffective assistance on a failure-to-substitute claim, Lark-Holland must show that Judge Konkol’s handling of his case was fundamentally unfair or that Judge Konkol was not impartial.  See State v. Damaske, 212 Wis. 2d 169, 200–201, 567 N.W.2d 905, 919–920 (Ct. App. 1997).  To establish Strickland  prejudice, it is not sufficient to show “‘the idiosyncracies of the particular decisionmaker, [sic] such as unusual propensities toward harshness or leniency.’” Damaske, 212 Wis. 2d at 201, 567 N.W.2d at 919 (quoting Strickland, 466 U.S. at 695) (“‘evidence about … a particular judge’s sentencing practices, should not be considered in the [ineffective assistance] prejudice determination’”).

¶13      Lark-Holland did not show that he was prejudiced by not being advised to substitute against Judge Konkol.  Judge Konkol fully explained the sentence in accord with a well-reasoned exercise of discretion. …

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