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COA: lawyer’s failure to communicate in homicide case wasn’t IAC; trial court didn’t err in preventing client from firing him

State v. Daimon Von Jackson, Jr., 2019AP2383, 12/29/21, District 2 (not recommended for publication) case activity (including briefs); petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23

Jackson admitted being involved in a planned robbery that ended in the shooting death of its target. He said–and eyewitness testimony and physical evidence corroborated–that he wasn’t the shooter; instead he said he was the lookout. The state charged him with felony murder, armed robbery and being a felon in possession of a gun. Eventually, he entered a plea to second-degree reckless homicide. He says this plea came about because his trial lawyer, by lack of communication or preparation for trial, left him no choice–and the circuit court refused to allow him to dismiss that lawyer.

Our supreme court has already determined that the trial lawyer failed in his ethical duties to consult and communicate with Jackson; it suspended his license for 60 days for his lapses in this and another matter. But the court of appeals says–over Judge Reilly’s dissent–that if these failings were deficient performance, Jackson can’t show they prejudiced him, so he can’t withdraw his plea.

Trial counsel was the fourth lawyer on the case; he testified at the Machner hearing that he met with Johnson twice between his appointment in March 2016 and the scheduled trial date of November 1; there was a third meeting on that trial date, which became a plea hearing date. At the final pretrial on October 17, Jackson asked the court to replace Anderson saying, in part, that he hadn’t kept in contact. The trial court refused, though he asked Counsel to meet with Jackson; counsel didn’t do so until the day of trial. Counsel also did not file jury instructions before trial, as the circuit court had ordered. Jackson testified that he accepted the state’s plea offer because he felt he “didn’t have a choice” as his lawyer “wasn’t prepared for trial” and he “would have got a life sentence.”

Trial counsel, on the other hand, testified that per his day-of-plea conversation with Jackson, the decision not to go to trial was prompted by the strength of the state’s case. The circuit court found that Jackson was “not a credible witness” as to his reason for taking the plea, and concluded that the real reason was the strength of the proof against him. (¶31). Thus, though it found trial counsel’s failure to meet with Jackson to be deficient performance, the circuit court held Jackson couldn’t establish prejudice–which requires, in the plea context, “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The court of appeals agrees, saying that Jackson’s prior lawyers had communicated with him, and that he did not show how his last lawyer’s failure to communicate with him deprived him of knowledge relevant to his plea decision. (¶48).

Both the circuit court and the court of appeals refuse to see the forest for the trees. The latter quotes the former saying that the “linkage” between “lack of communication and a lack of preparation” “is not altogether apparent.” Really? Jackson, on the day of his homicide trial(!), sat with a lawyer with whom he had barely communicated. How, not having had adequate communication with this lawyer, could he know whether or not adequate preparation had occurred? It’s hard to imagine how Jackson being left in the dark by his attorney’s failure to inform him would not have influenced his decision to take the deal on offer.

The court of appeals also affirms the circuit court’s discretionary rejection of Jackson’s request for new counsel, saying it reasonably considered the timeliness of Jackson’s motion and his reasons for asking for a new lawyer. (¶¶52-55).

Judge Reilly dissents. In his view, counsel’s deficiencies put Jackson in the position of pleading to a crime he didn’t commit: that is, a homicide in which he was the shooter, rather than a lookout who may not have intended the victim any harm.




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