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COA holds that circuit court properly concluded defendant did not establish existence of medication-induced amnesia

State v. Reynaldo Rosalez, 2022AP1929-CR, 6/11/24, District I (not recommended for publication); case activity

In a case illustrating the stringent standard of review used to assess findings of fact, COA dispatches with Rosalez’s claim that his lawyer failed to discuss a defense related to his alleged medication-induced amnesia.

Rosalez pleaded no contest to sexually assaulting his girlfriend’s child. (¶4). The no-contest plea was based in part of Rosalez’s claim that he had blacked out on the evening in question after consuming alcohol and Ambien and thus had no memory of what happened. (Id.).

Postconviction, he argued that his lawyer was ineffective for not informing him of the holding in State v. McIntosh, which appears to stand for the proposition that a defendant credibly suffering from amnesia may argue that this medical condition impairs their ability to be fairly tried. (¶5). The circuit court conducted an evidentiary hearing, at which time a psychologist testified that Rosalez was not “malingering” with respect to his claimed amnesia. (¶8). However, the doctor did not affirmatively diagnose Rosalez with amnesia. (Id.). Accordingly, the circuit court denied the motion, holding that Rosalez could not proceed without an affirmative medical diagnosis. (¶10). It also found Rosalez’s testimony incredible. (Id.).

COA holds that a defendant making a claim under McIntosh must show that a “permanent amnesia has been medically established.” (¶16). Here, the circuit court’s findings on this point are not clearly erroneous. (¶21). Rosalez not only failed to present an affirmative diagnosis, he also offered “no evidence on the issue of permanency.” (Id.). As this threshold finding underpins Rosalez’s entire legal claim, COA therefore affirms. (¶22).

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