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CoA rejects plea, ineffective assistance and new trial claims; affirms TPR order

State v. T.R.C., 2018AP820, 4/2/19, District 1 (1-judge opinion, eligible for publication); case activity

T.R.C. pled “no contest” to grounds for termination of her parental rights to D. On appeal she argued that her plea was not knowing, intelligent and voluntary, that her trial counsel was ineffective, and that the TPR order should be vacated in the interests of justice. The court of appeals affirmed.

The plea colloquy. T.R.C. argued that the trial court led her astray when, during her plea to grounds for a TPR, it told her that the dispositional hearing was “a bit different”from the grounds phase. She said that didn’t understand the relationship between the two.  The court of appeals included a 3-page quote from the trial court’s colloquy with T.R.C. to prove that she did know what she was doing when she pled “no contest” to grounds.  Opinion, ¶11, ¶32.

Ineffective assistance of trial counsel. T.R.C. argued that trial counsel should have objected to the family case manager’s testimony that D became sick with diarrhea after visits with her because the case manager was not a medical expert. The court of appeals held that these observations did not require a medical expert. They could be made by a lay expert under §907.01, so counsel’s failure to object to this testimony was not deficient performance. Opinion, ¶36.

T.R.C. also argued that trial counsel should have called one of D’s gastroenterologists whose testimony would have been favorable to her. The court of appeals gave a lame reason for rejecting this argument: “The State did not rely on a medical diagnosis, but rather on the facts that loose stools occurred regularly after visits and on virtually no other occasions.” Thus trial counsel did not perform deficiently. Opinion, ¶37.

Seriously? What if the gastroenterologist could give a medical testimony attributing the cause of the loose stools to something other than T.R.C.?

T.R.C. also argued that trial counsel should have called the doctor who performed a psychological examination on her before the dispositional hearing and prepared a favorable report. The court of appeals held that T.R.C. exaggerated the the report’s conclusions. Opinion, ¶38.

T.R.C. then argued that trial counsel should have  argued that §48.415(2) was unconstitutional as applied to her. There was a less restrictive means to protect D than terminating T.R.C.’s rights to her. The court of appeals held that when T.R.C. entered her “no contest” plea she waived her right to contest the constitutionality of the statute.  Thus, trial counsel’s failure to raise this argument was no ineffective. Opinion, ¶40.

New trial in the interests of justice. T.R.C. argued that the GAL who recommended termination of her rights had been the subject of a criminal investigation for child pronopgraphy in an unrelated case and this created a conflict of interest. The court of appeals rejected this argument because T.R.C. failed to establish a nexus between this case and the criminal investigation. Opinion, ¶43.






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