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Ineffective Assistance of Counsel – Lesser Offense; Sentencing – Exercise of Discretion

State v. Aaron Deal, 2010AP1804-CR, District 1, 9/20/11 

court of appeals decision (not recommended for publication); for Deal: James A. Rebholz; case activity

Counsel’s refusal to argue to the jury that it should return a guilty verdict on felony murder, submitted as a lesser offense option of first-degree intentional homicide, wasn’t deficient in light of the defendant’s insistence on an all-or-nothing strategy.

¶8        At the Machner hearing, Deal’s trial attorney, Theodore Nanz, testified that Deal’s position throughout his entire representation was that Deal did not want any conviction.  Deal was therefore unwilling to plead to any reduced charge.  Because Deal wanted an acquittal, he did not want his counsel to pursue a felony murder jury instruction or a felony murder defense. …

¶10      Attorney Nanz testified that throughout the entirety of his representation, Deal consistently gave the impression that Deal “wanted out” altogether.  Attorney Nanz stated that Deal even conveyed that he did not want a felony murder jury instruction.  Deal eventually agreed to the instruction after having a colloquy with the court, but still never asked Attorney Nanz to argue felony murder.  Even as late as closing arguments, Attorney Nanz believed that his client did not want him to argue felony murder.  At one point, Deal told Attorney Nanz that he was not present at the crime, thus leaving his attorney with no viable defense strategy other than to attempt to discredit the State’s case and argue that Deal was not present at the crime.

¶12      Deal’s attorney advised him to reduce his exposure and to plead to the lesser offense rather than risk life in prison in a gamble for an acquittal that was objectively unlikely because:  (1) of Deal’s recorded statement to police; (2) Deal provided the guns both for himself and Cowans; and (3) Deal shot a man he did not know as the man tried to escape.  Deal rejected legal advice that was clearly sound, and as a result lost his gamble.  Deal, not his attorney, bears the responsibility for the choices made.

Some harsh words accompany the court’s analysis: an IAC claim based on a client’s rejection of “the attorney’s specific advice” is, if not frivolous, “certainly disingenuous,” ¶1 n. 2; Deal’s specific attempt to argue in favor of the lesser offense option he resisted before and during trial exemplifies judicial estoppel, i.e., impugns judicial integrity, ¶11. The court’s criticism, to be blunt, is hyperbolic. To whom is the lesser-offense decision reserved? Client, or counsel? If the decision is a personal one, in the nature of a plea, then it is non-delegable and belongs solely to the defendant. But the court of appeals rejected that very idea, in State v. Eckert, 203 Wis.2d 497, 508-09, 553 N.W.2d 539 (Ct. App. 1996) (rejecting idea that prior caselaw requires counsel to place decision to request lesser-included in hands of defendant; “Further, the decision whether to request a lesser-included offense instruction is a complicated one involving legal expertise and trial strategy.”). Throw into the mix the idea that counsel is not only permitted to argue inconsistent theories of defense, but that the decision to do so is “virtually invulnerable to second-guessing,” State v. Westmoreland, 2008 WI App 15, ¶20, 307 Wis. 2d 429, 744 N.W.2d 919 (counsel’s “sticking with the all-or-nothing approach set out in her opening statement would have been largely suicidal,” therefore “it was a reasonable trial strategy for counsel to argue an alternative defense based on reckless conduct”). So, then, the lesser offense decision is within the realm of tactics, much like any other. It follows that counsel’s conduct must be reviewed to see if it was reasonable, not merely whether it comported with the defendant’s (highly notional) expectations. Put somewhat differently, is it fair to say that appellate counsel impugns the integrity of the court by arguing that, under the court of appeals’ own line of authority, a trial attorney is something more than his client’s marionette? If nothing else, the court of appeals’ ire might be more understandable had Deal persisted with his refusal to accede to a lesser offense option; but he did not, which makes the court’s criticism more puzzling still. (“Deal eventually agreed to the instruction after having a colloquy with the court, but still never asked Attorney Nanz to argue felony murder,” ¶10.) Deal didn’t testify, he didn’t call any witnesses but he did assent to a lesser offense instruction – his only theory of defense, which trial counsel studiously ignored. The court of appeals’ premise, that an attorney must abdicate all exercise of judgment and slavishly defer to the client’s desire in this context, is highly dubious. The court’s criticism of appellate counsel for challenging that premise is gratuitous.

¶20      The trial court did not impose the maximum period of time in prison available.  Deal was not totally denied eligibility for extended supervision.  The trial court has left the door open for Deal to have a second chance, albeit when he is older and presumably more mature.  Based on the nature of the crime and the record in this case, we conclude that Deal’s sentence was fully justified.  It was not a result of his decision to go to trial, but rather was a result of the serious crime of which he was convicted, his character, the need for both punishment and deterrence, and the need to protect the public.

Standard of review, sentencing discretion, recited, ¶¶14-15.

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