COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 3, 1996 |
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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1646-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM J. MCKINNEY,
Defendant-Appellant.
APPEAL from judgment and
an order of the circuit court for Brown County: PETER J. NAZE, Judge. Affirmed.
LaROCQUE, J. William J. McKinney appeals his conviction
for possession of a controlled substance and the denial of his motions for
postconviction relief. McKinney asserts
that his trial counsel's performance was constitutionally deficient. Because McKinney has failed to present the
testimony of trial counsel regarding his representation of McKinney, this court
affirms.[1]
McKinney was charged
with possession of cocaine contrary to § 161.41(3m), Stats., and possession of marijuana,
contrary to § 161.41(3r). McKinney
waived his right to a jury trial and proceeded to a trial before the
court. The court found McKinney guilty
of the charges and proceeded immediately to sentencing.
McKinney argues that his
defense counsel was ineffective at trial, citing Strickland v. Washington,
466 U.S. 668 (1984). In particular,
McKinney argues that trial counsel was ineffective in advising him to waive his
right to a jury trial. McKinney asserts
that there is "no showing" that trial counsel discussed this issue
with him and that the decision to waive his right to a jury "is a clear
indication of ineffective assistance of counsel ...." Furthermore, McKinney argues that trial
counsel was ineffective at sentencing for failing to bring to the attention of
the court mitigating factors such as McKinney's employment record, family
connections or rehabilitation efforts.
This court considers
McKinney's arguments waived. McKinney
bears the burden of proving ineffective assistance of counsel. See State v. Pitsch, 124
Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985).
In State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905,
908 (Ct. App. 1979), this court held that "it is a prerequisite to a claim
of ineffective representation on appeal to preserve the testimony of trial
counsel. We cannot otherwise determine
whether trial counsel's actions were the result of incompetence or deliberate
trial strategies." In this case,
the ineffective assistance of counsel argument was not raised before the trial
court. No Machner-type
hearing was conducted, and the record is devoid of any testimony by McKinney's
trial counsel regarding his representation of McKinney. McKinney has not explained his failure to
preserve such testimony for appeal.
This court therefore will not consider McKinney's claim further.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.