COURT OF
APPEALS DECISION DATED AND
RELEASED January
16, 1997 |
NOTICE |
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. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0573-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
MARK
C. HOLT,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Rock County: JAMES E. WELKER, Judge. Affirmed.
Before
Dykman, P.J., Vergeront and Roggensack, JJ.
PER
CURIAM. Mark C. Holt appeals from a judgment of conviction for
aggravated battery and a postconviction order denying his motion for a new
trial for the claimed ineffective assistance of counsel. The issue is whether Holt waived review of
the ineffective assistance issue by failing to present his trial counsel's
testimony at the postconviction hearing.
We recently held that a defendant's failure to secure trial counsel's
presence at a postconviction hearing waives review of an ineffective assistance
of trial counsel claim. State v.
Mosley, 201 Wis.2d 36, 50, 547 N.W.2d 806, 812 (Ct. App. 1996). Therefore, we affirm.
A
jury found Holt guilty of the aggravated battery of Anthony Fiorucci. The State's principal witness who observed
the altercation was James Skilling, a friend to both Holt and Fiorucci. Holt was staying at Skilling's
apartment. Skilling watched Holt leave
the apartment to get some beer from his car.
In the street, Holt and Fiorucci argued, but Holt ultimately returned to
Skilling's apartment with the beer.
About thirty minutes later, Fiorucci arrived at Skilling's apartment
with a baseball bat, "to beat Mark [Holt] up." Skilling observed the fight between Holt and
Fiorucci and Holt was charged with aggravated battery, as a habitual offender. Holt claimed self-defense.
The
focus of the ineffective assistance claim arises from trial counsel's failure
to impeach Skilling on his prior record.[1] Rather than presenting the testimony of
trial counsel, postconviction counsel filed trial counsel's affidavit. Trial counsel averred that, although aware
of Skilling's prior convictions, Skilling's trial testimony was more helpful
than harmful to Holt's defense, convincing counsel that it would not have been
prudent to impeach Skilling's credibility.
The trial court denied the motion because it determined that Holt had
not met his burden of proving that trial counsel's performance was deficient in
his investigation of the case, and that his decision not to impeach Skilling on
the prior convictions was a "reasonable and competent trial strategy
decision...." Holt appeals.
To maintain a claim for ineffective
assistance of trial counsel, "it is the duty and responsibility of
subsequent counsel to go beyond mere notification and to require counsel's
presence at the hearing in which his conduct is challenged." State v. Machner, 92 Wis.2d
797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979).
This is required to provide a record of trial counsel's reasons for how
the case was handled. On review, that
record will enable us to determine whether the decisions and conduct in issue
were the result of counsel's incompetence, or a deliberate trial strategy. See id. In Mosley, we held that the
failure to procure trial counsel's presence at a postconviction hearing on an
ineffective assistance claim waives review of that issue. 201 Wis.2d at 50, 547 N.W.2d at 812.
Holt contends that there may be certain
instances, such as the one at bar, to which Mosley does not
apply. However, Holt acknowledges that
trial counsel's testimony is necessary "to protect against general,
unsubstantiated opinions of dissatisfied defendants," but those are not
the circumstances presented here because he has identified the manner in which
the presentation was defective. Holt
has not convincingly distinguished Mosley. The submissions in this case are
insufficient to avoid producing trial counsel, as Mosley
requires.
By the Court.—Judgment and order
affirmed.
This opinion will not be published. See Rule
809.23(1)(b)5, Stats.