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Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Potential Defense – Guilty Plea

State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center

Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant’s instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain.


¶19 Pote is correct that to provide effective representation to a person charged with a crime, an attorney is obligated to adequately investigate any potential defenses and discuss them with his or her client. See Pitsch, 124 Wis. 2d at 638. Defense counsel should also thoroughly discuss any proposed plea agreement and its advantages and disadvantages with the client. See State v. Rock, 92 Wis. 2d 554, 563-64, 285 N.W.2d 739 (1979). The trial court found that counsel did precisely these things in this case. We disagree with Pote’s suggestion that his counsel was obligated to recommend to him that he reject the offer because of the possibly meritorious defense to one of the two counts with which he was charged, or that counsel should have ignored Pote’s instruction to obtain an overall disposition involving no jail time. Even though Pote established at the postconviction hearing that the medical defense to count two may have been stronger than Pote or his counsel believed prior to Pote’s plea, as the trial court noted, this would not have diminished Pote’s exposure to a felony conviction on count one.

¶20 We conclude that, in light of the trial court’s factual findings based on its assessment of Pote’s and his counsel’s credibility, counsel’s pre-plea performance fell within the wide range of professionally competent representation.  Strickland, 466 U.S. at 690.  Having so concluded, it is not necessary for us to address whether counsel’s performance prejudiced Pote with respect to the tender and acceptance of his plea.  See id. at 697.

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