State v. Gilpin1/14/1999
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
Marilyn L. Graves Clerk, Court of Appeals of Wisconsin
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats.
APPEALS from judgments of the circuit court for Monroe County: STEVEN L. ABBOTT, Judge. Affirmed.
Ronald H. Gilpin was convicted, after a jury trial, of driving while intoxicated (fourth offense). He argues on appeal that: (1) his trial counsel was ineffective for failing to file a motion in limine prior to trial stipulating to his prior convictions, and thus avoiding the introduction of evidence of the convictions at trial; (2) the trial court erred when it allowed such evidence after defense counsel's mid-trial offer to stipulate to the convictions; and (3) the court erred in instructing the jury that a sample of the defendant's blood was taken within three hours after he was operating a vehicle. Gilpin has not persuaded us that his counsel was ineffective, or that any claimed error in admitting evidence could possibly be prejudicial. As to his claim of instructional error, Gilpin waived his right to challenge the jury instruction on appeal by failing to object to it at trial. We therefore affirm his convictions.
I. Ineffective Assistance of Counsel
For a defendant to prevail on a claim of ineffective assistance of counsel, he or she must establish that counsel's actions constituted deficient performance, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). And because representation is not constitutionally ineffective unless both elements of the test are satisfied, State v. Guck, 170 Wis.2d 661, 669, 490 N.W.2d 34, 37 (Ct. App. 1992), we may dispose of an ineffective assistance of counsel claim where the defendant fails to satisfy either element. State v. Johnson, 153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990).
On appeal, the issues are both of fact and law. Strickland, 466 U.S. at 698. The trial court's findings as to what the attorney did, what happened at trial, and the basis for the challenged conduct, are factual and will be upheld unless they are clearly erroneous. State v. Weber, 174 Wis.2d 98, 111, 496 N.W.2d 762, 768 (Ct. App. 1993). However, whether counsel's actions were deficient and, if so, whether they prejudiced the defense, are questions of law which we review independently. State v. Hubanks, 173 Wis.2d 1, 25, 496 N.W.2d 96, 104-05 (Ct. App. 1992)
An attorney's performance is not deficient unless it is shown that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Guck, 170 Wis.2d at 669, 490 N.W.2d at 38 (quoted source omitted). We thus assess whether such performance was reasonable under the circumstances of the particular case, Hubanks, 173 Wis.2d at 25, 496 N.W.2d at 105; and to prevail in the argument the defendant must show that counsel "made errors so serious that [he or she] was not functioning as the `counsel' guaranteed ... by the Sixth Amendment." Guck, 170 Wis.2d at 669, 490 N.W.2d at 37-38. And in assessing counsel's conduct, we pay great deference to his or her professional judgment and make every effort to avoid making our determination based on hindsight. Johnson, 153 Wis.2d at 127, 449 N.W.2d at 847. We consider the claim from counsel's perspective at the time of trial, and the burden is on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms. Id. at 127, 449 N.W.2
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