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Ineffective assistance of counsel; “new factor” based sentence modification

State v. Stephen Lehman, 2011AP2821-CR, District I (not recommended for publication).   Case activity.

Lehman pled guilty to 2 counts of burglary of a dwelling.  The trial court sentenced him to 5 years of initial confinement and 3 years of extended supervision for each count.  The court ran the sentences consecutively, ordered Lehman to pay $1,700 in restitution, and declared him ineligible for the Challenge Incarceration and Earned Release programs.   Lehman raised many unsuccessful claims for postconviction relief, appealed and now loses again.  The two somewhat interesting issues in his case are these:

Ineffective assistance of counsel — showing required for a hearing

Lehman challenged the trial court’s refusal to hold an evidentiary hearing on his ineffective assistance of counsel claims.  The appellate court affirmed because Lehman failed to make the showing required by State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996) and Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and reinforced by State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433.

First, [courts] determine whether the motion on its face alleges sufficient material facts that, if true, would entitle the defendant to relief.  This is a question of law that [appellate courts] review de novo.  If the motion raises such facts, the circuit court must hold an evidentiary hearing.  However, if the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.

Id., 274 Wis. 2d 568, ¶9 (italics added; citations omitted).

Lehman claimed he would have gone to trial or pled guilty to lesser offenses had trial counsel investigated 4 specific witnesses.  The problem, according to the court of appeals, is that he did not offer an affidavit from any one of the alleged witnesses.  (Slip. op., ¶ 10).  He offered only speculation about what would have happened if the witnesses testified the way he expected.  Not good enough.  The court also rejected one witness’s proposed testimony “offered through an affidavit of postconvcition counsel via an investigator for the public defender’s office.”  (Id., ¶12).    Trial counsel had no memory of the defendant ever mentioning the witness, and the witness’s proposed testimony was weak in light of Lehman’s confession.  No “solid facts” that trial counsel performed deficiently.   No reasonable likelihood Lehman would have proceeded to trial.  Ergo no postconviction motion hearing was necessary.

Sentence modification based on a new factor

The risk reduction statute, Wis. Stat. § 973.031, went into effect several months after Lehman was sentenced.  Lehman claimed this was a new factor warranting modification of his sentence.  The court of appeals, after reciting the new factor test, said “no” because the trial court clearly considered Lehman a “career criminal,” and a serious threat to the public.  Also, rehabilitation had not worked, leaving the trial court no choice but to impose a severe sentence.  Thus, held the court of appeals:  “In these circumstances, the risk reduction statute, which would have resulted in a decreased sentence, was not germane to what the trial court wanted to do.”  (Slip op., ¶24).

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