On Point

State v. Carla L. Oglesby, 2006 WI App 95
For Oglesby: Timothy T. Kay

Issue/Holding:

¶15      … [T]he trial court’s oral pronouncement imposed a two-year term of probation in 2004CM401. Despite this clear and unequivocal statement, the judgment of conviction recited a probation term of six years.

¶16      When an unambiguous oral pronouncement at sentencing conflicts with an equally unambiguous pronouncement in the judgment of conviction, the oral pronouncement controls. State v. Lipke, 186 Wis.  2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994). Thus, Oglesby’s appeal, and the State’s concession of error on this issue, are well taken. The trial court should have granted Oglesby’s motion to amend the judgment to recite a probation term of two years. We therefore reverse the sentencing portion of the judgment of conviction in 2004CM401 and remand with instructions that the trial court enter an amended judgment reciting the maximum two-year term of probation. …

State v. Carla L. Oglesby, 2006 WI App 95
For Oglesby: Timothy T. Kay

Issue/Holding: The test for statutory construction – whether the language is capable of being understood by reasonably informed persons in different ways – applies to determination of a sentencing court’s intent; where the parties staked out different sentencing positions but the sentencing court was silent as to whether multiple terms were to be concurrent or consecutive, the court’s sentencing remarks could reasonably be construed as indicating either position, ¶19.

¶21      Thus, we look to the full record in this case, including the judgment of conviction, in determining the trial court’s sentencing intent. But in so doing, Oglesby comes to the debate with a threshold advantage. In State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991), the court noted the supreme court’s holding in In re McDonald, 178 Wis. 167, 171, 189 N.W. 1029 (1922), that where an offender is actually or constructively serving a sentence for one offense and is then ordered to serve another sentence for a different offense, the second sentence will be deemed to run concurrently with the first sentence in the absence of a statutory or judicial declaration to the contrary. (Emphasis added.) ^[6] So the question becomes whether the record, including the judgment of conviction, rebuts this presumption.

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 ^[6] The continuing vitality of this rule has been questioned. See State v. Rohl , 160 Wis.  2d 325, 331, 466 N.W.2d 208 (Ct. App. 1991), State v. Brown, 150 Wis.  2d 636, 639, 443 N.W.2d 19 (Ct. App. 1989), and State v. Morrick, 147 Wis.  2d 185, 187, 432 N.W.2d 654 (Ct. App. 1988). However, we do not have the authority to overrule a standing decision of our supreme court. Cook v. Cook, 208 Wis.  2d 166, 189, 560 N.W.2d 246 (1997).

The court goes on to say that the presumption was not rebutted. Though the reasons are fact-specific, the court stresses that the sentencing disposition “was not in lockstep with the State on all aspects of this sentencing,” ¶23. In other words, the State’s having sought consecutive time did not fill the vacuum caused by the court’s failure to articulate concurrent or consecutive, given that the court did not adopt the State’s position in toto. Indeed, the court made merely “minor deviations … from the State’s recommendations,” but that was enough to preserve the presumption, ¶23. Lengthy discussions of Brown, McDonald and State v. Lipke, 186 Wis. 2d 358, 364, 521 N.W.2d 444 (Ct. App. 1994) follow, the larger message being that when confronted with sentencing-intent ambiguity the reviewing court must review the record as a whole, a necessarily fact-intensive inquiry.

¶33      In summary, in both Brown and Lipke, the court of appeals’ examination of the record as a whole revealed additional relevant information, beyond the mere recital in the judgment of conviction, on the question of the trial court’s intent as to whether the sentence was concurrent or consecutive. Here, our examination of the record as a whole reveals no such additional information. Instead, we are left with the bald statement in the judgment of conviction that the confinement portion of the sentence in 2004CF225 is consecutive. If the trial court had sent any kind of signal that a consecutive sentence was necessary or appropriate, we likely would rule for the State. But we do not have that signal in this case. ^[7] Without more, we do not deem the bald recital of a consecutive sentence in the judgment of conviction sufficient to overcome the presumption of a concurrent sentence.

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 ^[7] By way of example, the trial court could have indicated that a period of confinement beyond the sentences imposed in 1997CF239, the probation revocation case, was necessary or appropriate. Or, when rejecting Oglesby’s pitch for probation in 2004CF225, the court could have said that it instead was opting for the State’s recommendation.

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt

Issue/Holding:

¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation. …

¶16 The Lowry court provided the rationale for this rule when it stated “[t]o hold otherwise would be to render the waiver meaningless; a defendant would lose nothing by waiving his right and sticking with counsel who had a conflict, since he could always allege ‘ineffective assistance’ if convicted.” Lowry, 971 F.2d at 63. With the caveat discussed below, we adopt the rule established by the Seventh Circuit that a defendant who validly waives his right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict. Harvey, 11 F.3d 691, 695 (7th Cir. 1993).

¶17 We question whether a valid waiver of a conflict of interest should act to bar all ineffective assistance claims where deficient performance is prompted by the waived conflict of interest. There may be instances in which counsel’s performance is deficient and unreasonably so even in light of the waived conflict of interest. An example will help explain the small door we leave open today.

¶18 … But what if the evidence seriously harms the defendant with no significant corresponding chance of helping the co-defendant? That is to say, what if counsel’s decision is not a reasonable strategic decision, even considering counsel’s conflict of interest? Should a valid waiver defeat all ineffective assistance claims, even when counsel’s choice is objectively unreasonable, taking into account the conflict? We have no occasion to answer this question today.

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06

For Demmerly: Edward J. Hunt

Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter, ¶22.

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis. Stat. Rule 906.11, Wisconsin’s version of Rule 611 of the Federal Rules of Evidence. SeeUnited States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980) (“There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers “added” was cumulative, and, further, if Rodriguez’s trial lawyer had objected, the prosecutor could have simply reviewed his notes and asked more focused questions to each officer.

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
Milanes: Joan M. Boyd

Issue/Holding: Counsel’s failure to litigate a (Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.

State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding

Issue/Holding:

¶50      Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense. Simply put, Barth, at the very least, had a duty to investigate Cooks’ alibi and his failure to fulfill that duty constitutes deficient performance. See Washington v. Smith, 219 F.3d 620, 631 (7th Cir. 2000). Thus, our focus is on the prejudice prong of the Strickland test.