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Court rejects claim that revocation hearing lawyer was ineffective

State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)

Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.

¶15      Martinez fails to demonstrate prejudice—here, a reasonable probability the ALJ would have sustained the objections he claims counsel should have made as well as a reasonable probability sustaining those objections would have resulted in a different outcome. He does not explain to us, nor did he explain to the circuit court, how counsel’s failure to object prejudiced him;.. and his appeal is “doomed” on this basis alone. …. While we recognize Martinez is pro se, it is nonetheless inappropriate for us to “abandon our neutrality to develop arguments” for him. ….

¶16     Performing our own independent review of the record, however, we further conclude Martinez would be hard pressed to make a showing of prejudice. We note he stipulated to one violation of his conditions of extended supervision—consuming alcohol—and even a single violation provides a sufficient ground for revocation. See State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 724, 566 N.W.2d 173 (Ct. App. 1997) (“Violation of a condition is both a necessary and a sufficient ground” for revoking supervision[]) (quoting State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 544-45, 217 N.W.2d 641 (1974)). More significantly though, even if revocation counsel had objected as Martinez suggests she should have, such objections would not have aided his case.

The court thereafter engages in a fact-intensive analysis that defies easy summary, so we won’t attempt that here. If you’re litigating an IAC claim in a revocation case, the opinion will merit a reading. Otherwise, we note two general points:

First, a revocation decision can be based “entirely” on hearsay if the hearsay is reliable, State ex rel. Simpson v. Schwarz, 2002 WI App 7, ¶30 n.6, 250 Wis. 2d 214, 640 N.W.2d 527 (2001), and the ALJ here expressly said it found the hearsay “credible and reliable,” in part based on corroborating testimony based on first-hand observations made by a witness who did testify. (¶¶17-24).

Second, Martinez brought his IAC claim by filing a habeas petition, which is the correct mechanism for doing so. Readers may recall that in the past the state claimed habeas is not the proper avenue for claims of IAC in revocation proceedings, and argued the revoked person must file a motion under State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361. The supreme court granted a certification to decide that question but, as we explained here, the certification was withdrawn after the state receded from its position (at least for now) and acknowledged habeas is the proper vehicle. Martinez made some other claims of error that were not IAC claims, but habeas doesn’t reach those errors, so the court doesn’t consider them. (¶1 n.1).

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