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Failure to adequately allege prejudice is fatal to ineffective assistance claim

State v. Frank D. Roseti, 2014AP2299-CR, District 2, 4/15/15 (one-judge decision; ineligible for publication); case activity (including briefs)

A claim that trial counsel was ineffective for failing to object to an alleged discovery violation falls short because the defendant does not develop an argument as to why an objection would have prevailed.

¶9       …. In his postconviction motion, Roseti complains trial counsel performed deficiently by failing to “object, move for a mistrial, move to strike any portion of [the officer’s] testimony, or take any other action to remedy the discovery violation.” However, in both his motion and appellate briefs, Roseti develops no arguments as to why any such objection or motion should or would have prevailed. Rather, without explanation, he appears to conclude that the circuit court would have ruled in his favor if trial counsel had made such an objection or motion.[4]

[4]  In conclusory fashion, Roseti asserts in his postconviction motion and asserts in his brief-in-chief on appeal that the State’s apparent failure to turn over the police report in question constituted a “discovery violation.” Even if the failure to turn over the report did constitute a discovery violation, which the State contests, Roseti fails in his motion and on appeal to explain why there would have been a reasonable probability he would have prevailed with an objection or motion, there was a reasonable probability the court would have ordered a remedy beneficial to him, and/or how there is a reasonable probability any such remedy would have resulted in a different outcome in his case. Roseti also fails to identify what portions of the officer’s testimony trial counsel should have moved to strike.

The police report wasn’t disclosed until cross-examination of a police officer called by the state in rebuttal. The report contained the defendant’s statement that he didn’t remember what happened during the incident for which he was charged; that was inconsistent with the “considerable detail” he provided in his trial testimony. (¶¶6-7). The pertinent discovery provision is § 971.23(1)(b), disclosure of defendant’s statements which the state “plans to use in the course of the trial.” Under State v. DeLao, 2002 WI 49, 252 Wis. 2d 289, 643 N.W.2d 480, the question of whether a prosecutor would use a defendant’s statement, and therefore is obligated to disclose it, is an objective one. Unlike the state, Roseti makes no mention of DeLao, much less mount an argument that a reasonable prosecutor would have planned to use his statement; and there’s not enough information in any of the briefs to assess whether that argument—had it been made—might have succeeded.

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