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State v. John H. Townsend, 2008AP2031, District I, 6/8/10

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Assistance of Counsel – Plea-Withdrawal

Counsel’s failure to file pre-sentencing motion to withdraw plea wasn’t due to failure to investigate claimed newly discovered evidence, hence wasn’t ineffective: according to trial court findings of fact, counsel indeed considered the value of this evidence and moreover allowed Townsend himself to decide whether to file the motion, ¶¶4-6.

Assistance of Counsel – Suppression Motion

Failure to file a suppression motion wasn’t ineffective, given findings of fact that the police interrogation wasn’t coercive, nor that Townsend ever suggested to counsel that it was, ¶¶7-10.

Townsend also claims that counsel was ineffective with respect to explaining the offense elements and, so Townsend said, by promising a sentencing result that was exceeded in the event. The court rejects these arguments on the basis on contrary findings of fact below, ¶¶11-15, and the discussion bears no more than this mention.

Assistance of Counsel – Collateral-Attack Counsel

¶16     Finally, Townsend asserts that the lawyer who was assigned to represent him at the Machner hearing gave him ineffective assistance. He claims this lawyer “did nothing but show up to the hearings,” “could have presented a better case” and did “[n]o investigation.” He claims this prejudiced him because “it swayed the trial court to believe that Townsend was not presenting a genuine postconviction proceeding.” Townsend does not, however, beyond these conclusory assertions, show what the lawyer who represented him at the Machner hearing should have done that he did not do. Accordingly, he has not shown that the lawyer gave him ineffective representation at the hearing. See State v. Byrge, 225 Wis. 2d 702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999).

A very sloppy passage, albeit in ways that don’t impact the result. First, the lesser detail: Byrge went up to the supreme court, 2000 WI 101, and even though the court of appeals was affirmed, this subsequent history should have been noted, for obvious reasons. Now, the greater problem: Townsend didn’t have the right to counsel at this stage of the game and therefore had no basis for alleging ineffective assistance in the way counsel litigated the Machner hearing. State v. Evans, 2004 WI 84, ¶32, 273 Wis. 2d 192, 682 N.W.2d 784 (“There is no constitutional right to counsel on a § 974.06 motion.”); Coleman v. Thompson, 501 U.S. 722, 752-53 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings. … Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”). The court of appeals simply had no basis to reach the merits of Townsend’s argument.

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