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For IAC claims in multi-count cases, SCOW says courts may determine prejudice on a count-by-count basis

State v. Lamont Donnell Sholar, 2018 WI 53, 5/18/18, affirming an unpublished court of appeals opinion, 2016AP897-CR, case activity

Appellate lawyers will want to pay attention to this decision because it clarifies the law and procedure governing claims for ineffective assistance of trial counsel. In particular, resolving an issue of first impression, it holds that in a multi-count case, trial counsel’s ineffective assistance doesn’t automatically result in a new trial on all counts. In this case, SCOW affirmed a decision ordering a new trial on just 1 of 6 counts.

A jury convicted Sholar of (1) trafficking a child; (2) soliciting a child for prostitution; (3) pandering/pimping one victim; (4) human trafficking; (5) 2nd degree sexual assault; and (6) pandering/pimping a second victim. At trial, Exhibit 79, a print out of the contents of Sholar’s cell phone, was admitted into to evidence but not published in its entirety to the jury. During deliberations, the jury asked a question, and the parties agreed that the court could respond by sending all of Exhibit 79 to the jury room.  Unfortunately, the exhibit included hundreds of text messages referencing other acts evidence like child pornography and drug dealing. The jury convicted on all 6 counts.

Sholar claimed that his trial counsel was ineffective in failing object to sending the exhibit to the jury.  The circuit court denied the claim without a hearing. Sholar appealed and the court of appeals reversed and remanded for a Machner hearing, where, among other things, his trial lawyer testified that the defense theory was that the cell phone belonged to  a  co-defendant who was tried separately.  Parceling the exhibit down to the messages linked to Sholar would be damaging to him.

The circuit court found ineffective assistance of trial counsel only with respect to the sexual assault count. It vacated that conviction but not the 5 sex trafficking counts. Again Sholar appealed arguing that he was entitled to a new trial on all 6 counts. SCOW disagreed:

¶2 We hold that circuit courts reviewing claims of ineffective assistance of counsel following multiple-count trials may conclude that deficient performance prejudiced only one of the multiple convictions.  Strickland v. Washington, 466 U.S. 668, 695-96 (1984), clearly contemplates such a result and does not require reversal on all counts when the prejudice proven affected only a single count.

Sholar highlighted 3 multi-count cases where SCOW found ineffective assistance of counsel and ordered a new trial on all counts. See State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, 848 N.W.2d 786; State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305; and State v. Honig, 2016 WI App 10, 366 Wis. 2d 681, 874 N.W.2d 589.  SCOW agreed that in these 3 cases the reviewing court did not do a count-by-count prejudice analysis. On the other hand, in these cases the State did not argue that the prejudice affected only one count. And the multiple charges in these cases depended on the same evidence.  Going forward, in multi-count cases defense lawyers can expect to see the State arguing for a split result–that a defendant proving ineffective assistance of trial counsel does not automatically get a new trial on all counts.

SCOW also clarified Strickland‘s prejudice test and distinguished it from the “sufficiency of the evidence” test. The bottom line is that “[b]oth standards require a reviewing court to examine the evidence, but in sufficiency challenges, convictions are upheld when the record shows a bare modicum of evidence from which a reasonable jury could find guilt.  In ineffective assistance challenges, a defendant must establish that but for his lawyer’s error, there is a reasonable probability the jury would have had a reasonable doubt as to guilt.” Opinion ¶45.

SCOW further clarified that when the court of appeals reverses a circuit court decision denying a Machner hearing on  a claim for ineffective assistance of counsel, it should not decide prejudice because at that point it does not know trial counsel’s strategy. He could testify to a reason proving that the defendant was not prejudiced at all. Opinion ¶55. In this case, the court of appeals appeared to have found prejudice and remanded for a Machner hearing regarding trial counsel’s strategy. Sholar argued that when the State failed to petition for review, it forfeited its right to challenge prejudice. SCOW disagreed and held that the only issue the court of appeals decided adversely to the State was that Sholar deserved a Machner hearing. Opinion ¶56.

Abrahamson dissented on just one aspect of this decision. She agreed that in a multi-count case it is possible for a trial lawyer’s deficient performance to prejudice the defendant on only one count. But she found Exhibit 79 to be “so prejudicial that [her] confidence in the outcome of Sholar’s entire trial [was] undermined.” Dissent ¶60. She observed: “It is hard to imagine anything more prejudicial than submitting child pornography extracted from the defendant’s phone to the jury for its consideration during deliberations.” Id. ¶65.


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