Ultimately, the issue addressed by the court of appeals is whether O.F. received ineffective assistance of counsel where trial counsel was alleged to have “violated his duty of confidentiality and loyalty” to his client. O.F.’s claims were based on multiple statements made by his trial counsel that arguably disclosed confidential information to the court and painted O.F. in a bad light. The court rejects O.F.’s claim primarily because he failed to establish “any prejudice” and also rejects O.F.’s assertions that his IAC claim was structural and thus did not require a post-disposition motion or a Machner evidentiary hearing. (Opinion, ¶¶22-25).
After the state petitioned to terminate his parental rights to his daughter, O.F. failed to appear at four adjourned initial appearances. The circuit court granted the state’s request for a default judgment, but when O.F. later appeared at his dispositional hearing, he requested counsel and stated that he had “reasons for his non-appearances.” The circuit court directed O.F. to the public defender’s office and gave O.F. a new court date, presumably so O.F. could move to vacate the default judgment. (¶8). At subsequent hearings O.F.’s trial counsel attempted to explain to the court why no motion to vacate O.F.’s default judgment had been filed. In doing so, trial counsel noted that he had not received information from O.F. necessary to support such a motion and that O.F. had failed to adequately communicate with him. (¶¶11-14). Trial counsel clarified that he remained in contact with O.F. and that O.F. was cooperating with his representation, but that it’s “just difficult.” (¶17).
The court of appeals first rejects O.F.’s assertion that “there was no need for a post-disposition motion or a Machner evidentiary hearing.” (¶¶22-23) (citing State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) and State v. Sholar, 2018 WI 53, ¶50, 381 Wis. 2d 560, 912 N.W.2d 89, to “preclude O.F.’s argument”).
Next, the court holds that O.F.’s IAC claim fails based on the circuit court record and O.F.’s failure to offer any evidence or argument that he was prejudiced by trial counsel’s alleged errors. (¶¶25-26). Specifically, the court rejects O.F.’s reliance on Massachusetts v. Weaver, 137 S. Ct. 1899 (2017), which suggested that only structural errors that “always result in fundamental unfairness” will result in the presumption of prejudice. (¶¶26-27). Finally, the court distinguished O.F.’s case from State v. Shirley E., 2006 WI 129, 298 Wis. 2d 1, 724 N.W.2d 623, where the “total denial of counsel was deemed structural error.” (¶¶28-30).
Reading between the lines, because the briefs are confidential, it would appear that O.F. sought to thread a needle through a much too tiny exception to Machner’s evidentiary hearing requirement in a case where proving prejudice would have been nearly impossible. Compared to some recent court of appeals decisions concerning default judgments in TPR cases (see this post, and this post, and this post), the circuit court here appears to have extended him a more than fair opportunity to appear and thereafter challenge the initial default judgment order.