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Challenge to postconviction counsel’s representation fails

State v. Larry D. Wright, 2014AP2672, District 1, 11/24/15 (not recommended for publication); case activity (including State’s brief)

The court of appeals rebuffs Wright’s claim that postconviction counsel was ineffective for not raising a claim of ineffective assistance of trial counsel on direct appeal. The court also rejects Wright’s claim that the trial court engaged in improper ex parte communication with the jury during deliberations.

On direct appeal Wright’s attorney raised two jury instruction issues. After losing that appeal, Wright filed a pro se § 974.06 motion making two claims: 1) his postconviction lawyer should have argued trial counsel was ineffective for failing to investigate the identity of the clerk who checked Wright into the hotel where the victim said Wright took her and sexually assaulted her; and 2) the trial court improperly allowed an exhibit to be submitted to the jury during deliberations without first consulting with Wright and his trial lawyer.

As to the first claim, Wright fails to show what the investigation would have revealed, and thus hasn’t explained why the investigation would have mattered. Also, Wright doesn’t dispute he was at the hotel the night of the offense, although he says it was with someone else; that admission, coupled with “the most damaging evidence” in the case—”that a fourteen-year-old girl from a different side of town had the ability to point out the very motel, the name of which she did not know, where registration cards showed Wright stayed on … the day of the assault”—means new evidence about who checked him in wouldn’t change the verdict. Because this claim isn’t “clearly stronger” than those raised in his direct appeal, State v. Starks, 2013 WI 69, 56-60, 349 Wis. 2d 274, 833 N.W.2d 146, postconviction counsel wasn’t ineffective for not raising it. (¶¶10-14).

As to the second claim, it’s not clear from the record whether the exhibit the jury asked to see was actually given to them, but either way it doesn’t matter: If the jury didn’t get the exhibit, there obviously was no improper ex parte communication; but if they did get it, the parties had stipulated that the jury could request and receive exhibits without discussion or argument from counsel, so there was no improper ex parte communication in that case, either. (¶¶15-19).

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