An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of the person’s petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354. There was ineffective assistance of counsel when the notice of appeal for the denial of a ch. 980 petition for supervised release was filed one day late in circuit court. Under Douglas, 372 U.S. 353 (1963), and Anders, 386 U.S. 738 (1967), the court of appeals could not conduct an independent review for error when the individual lacked requested representation. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354. A reviewing court is not required to view defense counsel’s subjective testimony as dispositive of an ineffective assistance claim. The testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel’s overall performance. State v. Kimbrough, 2001 WI App 138, 246 Wis. 2d 648, 630 N.W.2d 752, 00-2133. For a knowing and voluntary waiver of counsel on direct appeal, the defendant must be aware of: 1) the rights to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report; 2) the dangers and disadvantages of proceeding pro se; and 3) the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed. The necessary colloquy may be accomplished by written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. State v. Thornton, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45, 01-0726. Opening a letter marked “Legal Papers” outside of an inmate’s presence may have violated an administrative rule, but it was not a violation of the 6th amendment right to counsel. For the right to counsel to have an arguable application, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with an attorney. State v. Steffes, 2003 WI App 55, 260 Wis. 2d 841, 659 N.W.2d 445, 02-1300. When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client’s guilt contrary to the client’s plea of not guilty. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679. When a court finds numerous deficiencies in a counsel’s performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. Whether the aggregated errors by counsel will be enough to meet the Strickland, 466 U.S. 668 (1984), prejudice requirement depends upon the totality of the circumstances at trial, not the totality of the representation provided to the defendant. State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305, 01-1589. Under Dean, 163 Wis. 2d 503 (1991), a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313. No law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates the attorney’s postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. State ex rel. Ford v. Holm, 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02-1828. An attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client’s expressed admission of intent to testify untruthfully. While the defendant’s admission need not be phrased in magic words, it must be unambiguous and directly made to the attorney. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203. When a defendant informs counsel of the intention to testify falsely, the attorney’s first duty shall be to attempt to dissuade the client from the unlawful course of conduct. The attorney should then consider moving to withdraw from the case. If the motion to withdraw is denied and the defendant insists on committing perjury, counsel should proceed with the narrative form of questioning, advising the defendant beforehand of what that entails and informing opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203. An alleged violation of the requirements of Klessig, 211 Wis. 2d 194 (1997), can form the basis of a collateral attack as long as the defendant makes a prima facie showing that the defendant did not knowingly, intelligently, and voluntarily waive the defendant’s constitutional right to counsel, which shifts the burden to prove that the defendant validly waived the right to counsel to the state. The state may elicit testimony from the defendant at an evidentiary hearing in an attempt to meet its burden and, in turn, the defendant may not raise the 5th amendment privilege against testifying. State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, 03-1728. When a defendant seeks to proceed pro se, the circuit court undertakes a two-part inquiry, ensuring that the defendant: 1) has knowingly, intelligently, and voluntarily waived the right to counsel; and 2) is competent to proceed pro se. The record must demonstrate an identifiable problem or disability that may prevent the defendant from making a meaningful defense. The circuit court need not always make an express finding as to which specific problem or disability prevented the defendant from being able to meaningfully represent himself or herself. State v. Marquardt, 2005 WI 157, 286 Wis. 2d 204, 705 N.W.2d 878, 04-0958. A deaf defendant who was shackled during trial and sentencing had the burden to show that the defendant in fact was unable to communicate, not that the defendant theoretically might have had such difficulty. State v. Russ, 2006 WI App 9, 289 Wis. 2d 65, 709 N.W.2d 483, 04-2869. A defendant’s constitutional right to effective representation for the purpose of exercising the right to directly appeal a conviction did not require postconviction counsel to offer the defendant the option of a “partial no-merit” report on any potential issues remaining after the defendant declined for strategic reasons to pursue an issue having arguable merit. The U.S. Constitution requires only that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal. State ex rel. Ford v. Holm, 2006 WI App 176, 296 Wis. 2d 119, 722 N.W.2d 609, 02-1828. While courts sometimes can override a defendant’s choice of counsel when deemed necessary, nothing requires them to do so. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant’s right to retain counsel of the defendant’s choice and could leave the accused with the impression that the legal system had conspired against the accused. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W.2d 585, 05-0181. Generally, a defendant who validly waives the right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict, although there may be instances in which counsel’s performance is deficient and unreasonably so even in light of the waived conflict of interest. State v. Demmerly, 2006 WI App 181, 296 Wis. 2d 153, 722 N.W.2d 585, 05-0181. A lawyer’s failure to investigate is not deficient performance if the lawyer reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. When there is reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. State v. Walker, 2007 WI App 142, 302 Wis. 2d 735, 735 N.W.2d 582, 06-0562. It is recommended, if not required, that circuit courts take certain steps to determine whether a defendant has forfeited the right to counsel: 1) provide explicit warnings that, if the defendant persists in specific conduct, the court will find that the right to counsel has been forfeited; 2) engage in a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; 3) make a clear ruling when the court deems the right to counsel to have been forfeited; and 4) make factual findings to support the court’s ruling. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772. But see State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959. It would be unreasonable to require a circuit court to engage in a colloquy to ensure that the defendant deliberately relinquished the right to counsel in circumstances where the defendant will verbally insist he or she did not. In cases in which the defendant’s words are inconsistent with the defendant’s conduct, such a colloquy would be farcical. State v. McMorris, 2007 WI App 231, 306 Wis. 2d 79, 742 N.W.2d 322, 06-0772. Although an indigent defendant does not have the right to pick the defendant’s trial lawyer, the defendant is entitled to a lawyer with whom the defendant can communicate. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. The court must make sufficient inquiry to ensure that a defendant is not cemented to a lawyer with whom full and fair communication is impossible; mere conclusions, unless adequately explained, will not fly. State v. Jones, 2007 WI App 248, 306 Wis. 2d 340, 742 N.W.2d 341, 07-0226. There is no 6th amendment effective assistance of counsel right to subpoena police reports and other non-privileged materials prior to a preliminary examination. State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826. Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867. A defendant does not have the right to be represented by: 1) an attorney the defendant cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867. The circuit court’s decision to remove counsel of choice is discretionary. The court does not have unfettered freedom to deprive a defendant of retained counsel. Whether removal for conflict was proper rests on whether the court balanced the defendant’s right to be represented by retained counsel against the court’s interest in the appearance of fairness and diffusing what it characterized as a potential conflict. State v. Peterson, 2008 WI App 140, 314 Wis. 2d 192, 757 N.W.2d 834, 07-1867. When making a determination whether to allow the defendant’s counsel of choice to participate, the circuit court must balance the defendant’s right to select counsel against the public’s interest in the prompt and efficient administration of justice. Several factors assist the court in balancing the relevant interests, for example: the length of delay requested; whether competent counsel is presently available and prepared to try the case; whether prior continuances have been requested and received by the defendant; the inconvenience to the parties, witnesses, and the court; and whether the delay seems to be for legitimate reasons or whether its purpose is dilatory. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d 206, 07-1982. A trial court has no duty to advise a defendant of the right to self-representation if the defendant has not clearly and unequivocally invoked the right to self-representation. State v. Darby, 2009 WI App 50, 317 Wis. 2d 478, 766 N.W.2d 770, 08-0935. The fact that the government might know an informant hopes to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained. If there is hope, and nothing else, then the informant cannot be construed to be a government agent eliciting a statement in violation of the 6th amendment right to counsel. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429. The police do not have a duty to bar charged defendants’ visits with potential informants; indeed such a requirement would be unfair to prisoners. Also, when a person offers to assist the police, the police need not try to stop the person from providing assistance. As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the 5th or 6th amendments. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730, 09-0429. Klessig, 211 Wis. 2d 194 (1997), is the controlling authority for determining whether a defendant validly waived the right to counsel. However, when the circuit court failed to engage a defendant in the four lines of inquiry as prescribed in Klessig but determined that two of the four lines of inquiry were not satisfied, the circuit court did not commit automatic error requiring a new trial because the defendant could not have validly waived the defendant’s right to counsel. State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, 08-1521. But see Imani v. Pollard, 826 F.3d 939 (2016). Nothing bars a defendant from requesting substitution of counsel, nothing bars the public defender from choosing to make substitute counsel available, and nothing bars a court from granting such a request, but a court is not required by this section or by the 6th amendment to the U.S. Constitution to do so solely because a defendant requests it. State v. Jones, 2010 WI 72, 326 Wis. 2d 380, 797 N.W.2d 378, 08-2342. A defendant’s request to withdraw from self-representation and proceed with the assistance of counsel rests in the trial court’s discretion. A request to reinstate the right to counsel is akin to a request for substitution of counsel. A trial court may err by denying a request to revoke pro se status when the denial is merely to punish the defendant or is based on a rigid insistence on expedition in the face of a justifiable request for delay. A trial court does not erroneously exercise its discretion by preventing a defendant from reasserting the right to counsel merely to hinder the progress of the case against him. State v. Rhodes, 2011 WI App 145, 337 Wis. 2d 594, 807 N.W.2d 1, 10-0435. The right to select counsel of one’s choice has been regarded as the root meaning of the constitutional guarantee. Deprivation of the right is complete when the defendant is erroneously prevented from being represented by the lawyer the defendant wants, regardless of the quality of the representation received. To disqualify an attorney as a witness in a case, the state must show that the attorney is a necessary witness. It was an error to disqualify an attorney based solely on the fact that the attorney acted as a translator for his client. State v. Gonzalez-Villarreal, 2012 WI App 110, 344 Wis. 2d 472, 824 N.W.2d 161, 11-1259. In order to establish a 6th amendment violation on the basis of a conflict of interest, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that the defendant’s counsel had an actual conflict of interest based on the facts of the case. An actual conflict of interest exists when the defendant’s attorney was actively representing a conflicting interest so that the attorney’s performance was adversely affected. Counsel is considered per se ineffective once an actual conflict of interest adversely affecting counsel’s performance has been shown. A defendant need not prove that some kind of specific adverse effect or harm resulted from the conflict. State v. Villarreal, 2013 WI App 33, 346 Wis. 2d 690, 828 N.W.2d 866, 11-0998. A claim for ineffective assistance of postconviction counsel must be filed with the circuit court, either as a s. 974.06 motion or as a petition for a writ of habeas corpus. A defendant arguing ineffective assistance of appellate counsel, conversely, may not seek relief under s. 974.06 and must instead petition the court of appeals for a writ of habeas corpus. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425. But see State ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944 N.W.2d 588, 19-0567. A defendant who argues that the defendant received ineffective assistance of appellate counsel in a habeas petition because certain arguments were not raised must show why the claims the defendant believes should have been raised on appeal were “clearly stronger” than the claims that were raised. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425. Under Padilla, 559 U.S. 356 (2010), counsel’s failure to advise a defendant concerning clear deportation consequences of a plea bargain is prejudicial if the defendant shows that a decision to reject the plea bargain would have been rational under the circumstances. The defendant is not required to show that there would be a different outcome or that the defendant had real and viable challenges to the underlying veracity of the conviction. State v. Mendez, 2014 WI App 57, 354 Wis. 2d 88, 847 N.W.2d 895, 13-1862. But see State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, 13-1437. The court where an alleged ineffective assistance of counsel occurred is the proper forum in which to seek relief unless that forum is unable to provide the relief necessary to address the ineffectiveness claim. The remedy for an attorney’s failure to file a notice of intent to pursue postconviction relief is an extension of the timeframe to file the notice. Because the circuit court is without authority to extend the deadline to file a notice of intent to pursue postconviction relief, the proper forum lies in the court of appeals. State ex rel. Kyles v. Pollard, 2014 WI 38, 354 Wis. 2d 626, 847 N.W.2d 805, 12-0378. Failure to call a potential witness may constitute deficient performance. A failure to call a key witness, however, does not always necessarily constitute deficient performance. The failure to call a witness may have been a reasonable trial strategy. State v. Jenkins, 2014 WI 59, 355 Wis. 2d 180, 848 N.W.2d 786, 12-0046. Montejo, 556 U.S. 778 (2009), effectively established that a waiver of Miranda, 384 U.S. 436 (1966), rights is sufficient to waive the 6th amendment right to counsel and that such a waiver is not presumed invalid merely because the defendant is already represented by counsel. This section does not provide greater protections than the 6th amendment of the U.S. Constitution in the context of a waiver of the right to have counsel present during questioning. State v. Delebreau, 2015 WI 55, 362 Wis. 2d 542, 864 N.W.2d 852, 13-1108. The U.S. Supreme Court in Edwards, 554 U.S. 164 (2008), declined to adopt a federal constitutional competency standard and specifically recognized an individual trial court’s authority to make competency determinations. Nothing in Edwards establishes severe mental illness as the only circumstance in which a trial judge may deny the right of self-representation. The Wisconsin standards established by Klessig, 211 Wis. 2d 194 (1997), are not contrary to Edwards. Whether a defendant is competent to proceed pro se is uniquely a question for the trial court to determine. State v. Jackson, 2015 WI App 45, 363 Wis. 2d 484, 867 N.W.2d 814, 13-2859. Trial counsel did not perform deficiently by failing to inform the defendant that his no-contest plea to substantial battery was certain to result in his deportation and permanent exclusion from the United States. Because federal immigration law is not “succinct, clear, and explicit” in providing that the defendant’s substantial battery constituted a crime involving moral turpitude, the defendant’s attorney needed to do no more than advise him that pending criminal charges may carry a risk of adverse immigration consequences. State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717, 13-2435. Any language in Mendez, 2014 WI App 57, that suggests that Padilla, 559 U.S. 356 (2010), requires an attorney to advise an alien client that a conviction for a deportable offense will necessarily result in deportation is withdrawn. An attorney is required to “give correct advice” about the possible immigration consequences of a conviction. The attorney in this case satisfied that requirement by correctly advising the client that his guilty plea carried a “strong chance” of deportation. Executive action, including the U.S. Department of Homeland Security’s exercise of prosecutorial discretion, can block the deportation of deportable aliens. State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93, 13-1437. Counsel’s trial strategy decisions, even those appearing unwise in hindsight, will not constitute ineffective assistance of counsel so long as they are reasonably founded on the facts and law under the circumstances existing at the time the decision was made. It was not unreasonable for defendant’s counsel to allow an investigator to testify that the victim was telling the truth when counsel’s goal was to demonstrate that the investigator’s investigation was limited due to the investgator’s bias. State v. Smith, 2016 WI App 8, 366 Wis. 2d 613, 874 N.W.2d 610, 14-2653. Under Felton, 110 Wis. 2d 485 (1983), trial counsel’s decisions must be based upon facts and law upon which an ordinarily prudent lawyer would have then relied. This standard implies deliberateness, caution, and circumspection, and counsel’s decision must evince reasonableness under the circumstances. When counsel articulated no tactical reason implying deliberateness, caution, and circumspection for failing to call a witness and the record was devoid of any factual basis for a strategy that supported that failure, defense counsel’s performance was deficient. State v. Honig, 2016 WI App 10, 366 Wis. 2d 681, 874 N.W.2d 589, 14-2968. The 6th amendment’s guarantee of effective assistance of counsel does not require defense counsel to inform a defendant about the possibility of civil commitment under ch. 980 when the defendant enters a plea to a sexually violent offense. State v. LeMere, 2016 WI 41, 368 Wis. 2d 624, 879 N.W.2d 580, 13-2433. Physical separation between a defendant and the defendant’s attorney during a plea hearing, absent more, will not be analyzed as a complete denial of the right to counsel under Cronic, 466 U.S. 648 (1984). Such a claim may instead be analyzed under the framework set forth in Strickland, 466 U.S. 668 (1984). State v. Anderson, 2017 WI App 17, 374 Wis. 2d 372, 896 N.W.2d 364, 15-2611. Failure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer’s services outside the wide range of professionally competent assistance sufficient to satisfy the 6th amendment. State v. Lemberger, 2017 WI 39, 374 Wis. 2d 617, 893 N.W.2d 232, 15-1452. The standard to use in forfeiture of trial counsel cases established under Cummings, 199 Wis. 2d 721 (1996), is upheld. There are two situations when a defendant loses the right to counsel: 1) a defendant may knowingly, intelligently, and voluntarily waive the right to counsel; and 2) a defendant may forfeit the right to counsel. The triggering event for forfeiture is when the court becomes convinced that the orderly and efficient progression of the case is being frustrated. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959. Scenarios triggering forfeiture of the right to trial counsel include: 1) a defendant’s manipulative and disruptive behavior; 2) withdrawal of multiple attorneys based on a defendant’s consistent refusal to cooperate with any of them and constant complaints about the attorneys’ performance; 3) a defendant whose attitude is defiant and whose choices repeatedly result in delay, interfering with the process of justice; and 4) physical or verbal abuse directed at counsel or the court. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959. The contention that a defendant cannot forfeit the right to counsel unless the defendant’s actions were done with an intent or purpose to delay is rejected. Contrary language in Coleman, 2002 WI App 100, and any other case requiring proof of intentional, purposeful delay is overruled. State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543, 15-0959. Shata, 2015 WI 74, and Ortiz-Mondragon, 2015 WI 73, stand for the proposition that, when the law is not “succinct, clear, and explicit,” counsel is not deficient by accurately warning a client of the “risk of adverse immigration consequences.” Defendant’s counsel had no constitutional duty to give specific, direct advice on how pleading guilty would affect the defendant’s possibilities for readmission beyond the accurate, generalized warnings that were given. State v. Villegas, 2018 WI App 9, 380 Wis. 2d 246, 908 N.W.2d 198, 15-2162. 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, 466 U.S. 668 (1984), clearly contemplates such a result and does not require reversal on all counts when the prejudice proven affected only a single count. State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, 16-0897. The Strickland, 466 U.S. 668 (1984), prejudice test is distinct from a sufficiency of the evidence test. A defendant need not prove the outcome would more likely than not be different in order to establish prejudice in ineffective assistance cases. The defendant must prove there is a reasonable probability the jury would have acquitted the defendant absent the error. State v. Sholar, 2018 WI 53, 381 Wis. 2d 560, 912 N.W.2d 89, 16-0897. Counsel must either reasonably investigate the law and facts or make a reasonable strategic decision that makes any further investigation unnecessary. The court reviews the reasonableness of trial counsel’s decisions not with the benefit of hindsight, but in the context of the circumstances as they existed at the time counsel made the decisions. The court must consider the law and the facts as they existed when trial counsel’s conduct occurred. State v. Pico, 2018 WI 66, 382 Wis. 2d 273, 914 N.W.2d 95, 15-1799. To prove prejudice in a case alleging ineffective assistance of counsel, a defendant must establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In the context of a plea withdrawal, a defendant must establish, through objective factual assertions, a reasonable probability that the defendant would not have pled and would have gone to trial but for counsel’s ineffective performance. State v. Jeninga, 2019 WI App 14, 386 Wis. 2d 336, 925 N.W.2d 574, 18-0826. A court’s conclusion that counsel violated the rules of professional conduct because counsel failed to meet the demands of SCR 20:1.4 (a) (2) cannot mean, ipso facto, that counsel performed deficiently within the meaning of Strickland, 466 U.S. 668 (1984). State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192, 16-0375. When an alleged deficiency in counsel concerns the plea process, Hill, 474 U.S. 52 (1985), says the prejudice component specifically requires that the defendant must show that there is a reasonable probability that, but for the counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. A probability sufficient to undermine confidence exists when there is a “substantial,” not just “conceivable,” likelihood of a different result. When defendant’s counsel stated that, if the court were to allow the defendant to withdraw his plea, he still might decide to enter a plea, there is not a substantial likelihood of a different result, and, therefore, there is no prejudice shown. State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192, 16-0375. The Knight, 168 Wis. 2d 509 (1992)/Rothering, 205 Wis. 2d 675 (1996), framework remains the correct methodology for determining the appropriate forum for a criminal defendant to file a claim relating to the alleged ineffectiveness of counsel after conviction. Both Knight and Rothering premise their decisions on the forum in which the alleged ineffectiveness took place. Applying this framework, the circuit court is the appropriate forum for a claim that postconviction counsel is ineffective for failing to assert an ineffective trial counsel claim. State ex rel. Warren v. Meisner, 2020 WI 55, 392 Wis. 2d 1, 944 N.W.2d 588, 19-0567. To satisfy the first prong of an ineffective assistance of counsel claim, a defendant must establish, based on the totality of the circumstances, that counsel’s performance fell below an objective standard of reasonableness. Courts afford great deference to trial counsel’s conduct, presuming that it falls within the wide range of reasonable professional assistance. In this case, counsel did not provide ineffective assistance in failing to inform the defendant about legal precedent that does not provide the defendant with a defense. State v. Savage, 2020 WI 93, 395 Wis. 2d 1, 951 N.W.2d 838, 19-0090. Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgment supports the limitations on the investigation. Here, trial counsel was aware of the victim’s prior allegedly false statement about the victim’s cousin. Counsel understood that prior false allegations were admissible pursuant to an exception to the rape shield law, and in any event, that exception was not an unsettled or obscure area of the law. Trial counsel’s unsupported assumption that evidence of the prior allegation would be inadmissible was therefore not a reasonable strategic decision and was not entitled to any deference. As such, trial counsel did not provide a reasonable strategic reason not to seek and introduce evidence of the victim’s prior allegedly false statement regarding the victim’s cousin. Accordingly, although counsel’s overall strategy was reasonable, counsel’s implementation of it was not, and counsel’s omissions constituted deficient performance. State v. Stroik, 2022 WI App 11, 401 Wis. 2d 150, 972 N.W.2d 640, 21-0447. When a defendant raises a postconviction challenge to a guilty or no contest plea, the court has adopted a default procedure and an alternate procedure. The default procedure, articulated in Bentley, 201 Wis. 2d 303 (1996), places the burden on the defendant to prove a plea’s deficiency. The alternate procedure, articulated in Bangert, 131 Wis. 2d 246 (1986), applies when the defendant makes a pointed showing of an error in the plea colloquy by reference to the plea colloquy transcript. Under the Bangert procedure, after the defendant identifies a deficiency, the burden shifts to the state to prove the conviction’s sufficiency. If a defendant collaterally attacking a prior operating while intoxicated/prohibited alcohol concentration conviction cannot point to a defect in the relevant transcript, the burden-shifting procedure under Bangert does not apply. Instead, the defendant must carry the burden to demonstrate that a violation occurred. State v. Clark, 2022 WI 21, 401 Wis. 2d 344, 972 N.W.2d 533, 20-1058. A defendant is entitled to a Machner, 92 Wis. 2d 797 (1979), hearing only when the defendant’s motion alleges sufficient facts, which if true, would entitle the defendant to relief. However, if the motion does not raise facts sufficient to entitle the defendant to relief, or if it 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. In this case, the defendant’s counsel did not perform deficiently by withdrawing a request for a self-defense instruction, and the circuit court did not erroneously exercise its discretion by denying the defendant’s motion without an evidentiary hearing. State v. Ruffin, 2022 WI 34, 401 Wis. 2d 619, 974 N.W.2d 432, 19-1046. See also State v. Spencer, 2022 WI 56, 403 Wis. 2d 86, 976 N.W.2d 383, 18-0942; State v. Jackson, 2023 WI 3, 405 Wis. 2d 458, 983 N.W.2d 608, 20-2119. In this case, the defendant’s 6th amendment right to counsel was not violated because the defendant’s co-inmate was not acting as a state agent when the inmate recorded the inmate’s conversations with the defendant. State v. Arrington, 2022 WI 53, 402 Wis. 2d 675, 976 N.W.2d 453, 19-2065. The 6th amendment right to counsel attaches at all critical stages of the criminal process. The U.S. Supreme Court has recognized as critical stages those steps of a criminal proceeding that involve some adversarial confrontation. Wisconsin courts have determined that voir dire, jury instructions, and jury deliberations constitute critical stages at which the right to counsel attaches. In this case, the judge’s ex parte meeting with a juror regarding the juror’s health did not constitute a critical stage of the proceedings because the meeting: 1) occurred prior to deliberations; and 2) involved only a discussion of the juror’s health and ability to proceed. Both the timing and substance of the communications dictated that counsel’s absence did not result in a constitutional violation. State v. Spencer, 2022 WI 56, 403 Wis. 2d 86, 976 N.W.2d 383, 18-0942. Defense counsel waiving opening statement is an acceptable trial strategy. In this case, trial counsel did not know how or even whether the defendant would testify, so it was perfectly reasonable for counsel to waive the opening statement and avoid making promises to the jury counsel could not keep. Trial counsel was not ineffective for choosing to waive opening statement. State v. Hineman, 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652, 20-0226. To succeed on a claim under McCoy, 584 U.S. ___, 138 S. Ct. 1500 (2018), a defendant must show that: 1) the defendant expressly asserted that the objective of the defense was to maintain innocence of the charged criminal acts; and 2) the lawyer did not abide by that objective and overrode it by conceding guilt. In this case, the defendant’s constitutional right to maintain innocence as the objective of the defendant’s defense to a sexual assault charge was not violated when trial counsel told the jury that the alleged sexual contact had occurred but that it was accidental and with no intent to get sexual gratification. State v. Tung, 2023 WI App 33, 408 Wis. 2d 544, 993 N.W.2d 706, 21-1705. A preliminary hearing to determine probable cause for detention pending further proceedings is not a “critical stage” in a prosecution requiring appointed counsel. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). When the defendant’s right to counsel was violated by a corporeal identification conducted in court without counsel, the prosecution could not introduce identification evidence even though the identification had an independent source. Moore v. Illinois, 434 U.S. 220, 98 S. Ct. 458, 54 L. Ed. 2d 424 (1977). The right to counsel was not violated when a permissible jury instruction, intended for the defendant’s benefit, was given over defense counsel’s objections. Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978). An indigent defendant is not entitled to appointed counsel when charged with an offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979). In order to demonstrate a violation of the right to counsel, the defendant must establish that an actual conflict of interest adversely affected the counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The government violated the defendant’s right to counsel by placing a paid informant in the same cell who deliberately elicited incriminating statements. United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). Since a criminal defendant has no constitutional right to counsel to pursue a discretionary state appeal, the defendant could not be deprived of effective counsel by counsel’s failure to timely file an application for certiorari. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982). Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984).
/constitution/wi
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wisconsinconstitution
/constitution/wi/000229/000015/000112
section
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