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Effective Assistance of Counsel – Sentencing

State v. Troy D. Jefferson, 2011AP1778-CR, District 1, 6/26/12

court of appeals decision (not recommended for publication); case activity

Counsel was ineffective for failing to inform the sentencing court “about Jefferson’s good character and positive social history.”

 ¶17      Specifically, trial counsel’s failure to inform the trial court about Jefferson’s good character and positive social history in any meaningful way was deficient because it was not, contrary to what the State argues, the product of a reasoned strategy founded upon the facts or the law.  See id.  It is no mystery that the primary factors that determine the length of a sentence are the gravity of the offense, the character of the accused and the need to protect the public.  See State v. Hall, 2002 WI App 108, ¶7, 255 Wis. 2d 662, 648 N.W.2d 41.  Yet in this case, trial counsel argued that it was not “anybody’s job” to inform the trial court about Jefferson’s good character and positive social history—evidence of which included long-term employment, a genuine shouldering of parental responsibility, and strong ties to the community as shown by his relationship with his pastor.  Counsel’s argument evinces a fundamental misunderstanding of his role during sentencing and an unreasonable disregard for factors that the trial court was required to consider.  See id.  While counsel did mention that Jefferson had a “support system,” he did not provide the trial court with any substantive information that would help the court determine whether Jefferson would, upon release, act as an asset to the community rather than a burden.  Moreover, even when trial counsel did acknowledge a desire to highlight Jefferson’s positive attributes—in this case by preparing a statement for Jefferson to read at sentencing—he essentially put the onus on Jefferson, an admittedly soft-spoken and hesitant public speaker, to explain to the trial court in full detail his positive social history. Furthermore, counsel not only neglected to focus on factors that sentencing courts are required to consider when determining sentencing length, but also chose to focus almost wholly on the already-litigated issue of Jefferson’s guilt—a factor which, as the trial court correctly mentioned, had already been determined by the jury and was an established fact for the purpose of sentencing.  See Hall, 255 Wis. 2d 662, ¶7; see also Felton, 110 Wis. 2d at 502-03.  We therefore conclude that trial counsel’s performance was deficient.

¶18      We also agree with Jefferson that trial counsel’s performance was prejudicial.  The State urges us to adopt the trial court’s conclusions that:  (1) because Jefferson was reportedly intoxicated when he committed the crime, the fact that he attended AODA classes was inconsequential; and (2) knowledge of Jefferson’s other positive attributes—such as paying child support and holding a steady job—would not have made a difference in his sentence.  Under our de novo review of the matter, see Sanchez, 201 Wis. 2d at 236-37, however, we cannot agree with the State.  The trial court was required by law to consider evidence of Jefferson’s good character.  See Hall, 255 Wis. 2d 662, ¶7. The court could not do so in this case because it did not have any substantive information about Jefferson’s social history.  While the trial court noted that Jefferson’s family had been present for many of the proceedings, it also explained that it had not heard “much about anything positive” that Jefferson himself had actually done, and that that was a concern.  In a case where the defendant has provided numerous meaningful examples of his positive actions—including taking parenting classes, paying child support, having a very solid work history, and maintaining ties to the community as evidenced by his relationship with his pastor—we must conclude that these examples are sufficient to undermine our confidence in the sentence.  See Strickland, 466 U.S. at 694.

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{ 1 comment… add one }
  • Robert R. Henak June 27, 2012, 9:13 am

    The difference between the majority decision and the dissent in this case demonstrate the importance of applying the proper legal standard for assessing prejudice on an ineffectiveness claim and fully arguing that claim based on facts and logic rather than mere conclusions.

    The majority applies the proper legal standard: whether there exists a reasonable probability of a different result but for counsel’s deficient performance. The dissent, however, considers whether counsel’s deficient performance rendered the sentencing outcome “unreliable.”

    With all due respect to the dissenting judge, the U.S. Supreme Court expressly rejected the dissent’s “unreliable or unfair result” standard for assessing prejudice on an ineffectiveness claim as not merely wrong, but contrary to controlling Supreme Court authority more than a decade ago in Williams v. Taylor, 529 U.S. 362 (2000).

    Despite Williams, the Court of Appeals often applies the incorrect “reliability” standard, to the detriment of the criminal defendant and Wisconsin taxpayers who have to foot the bill for the continued incarceration of defendants whose convictions would and should have been reversed under the proper standard. Quite often, at least when the defendants are represented by knowledgeable counsel or assisted by extraordinary jailhouse lawyers, the Court of Appeals’ insistence on the “reliability” standard results in federal habeas relief since application of the improper standard removes the deference otherwise required for state court decisions under AEDPA.

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