COURT OF APPEALS DECISION DATED AND FILED January 08, 2008 David R. Schanker Clerk of Court of Appeals |
|
NOTICE |
|
|
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
|
Appeal No. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT I |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. John Tomlinson, Jr.,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from an order of the circuit court for
Before Wedemeyer, Fine and Kessler, JJ.
¶1 PER CURIAM. John Tomlinson, Jr., appeals from the order denying his Wis. Stat. § 974.06 (2005-06) motion.[1] He argues that he received ineffective assistance of trial and appellate counsel, and that the circuit court erred when it denied his motion without holding a hearing. Because we conclude that the circuit court properly denied Tomlinson’s motion without holding a hearing, we affirm.
¶2 In 1999, Tomlinson was convicted of first-degree reckless homicide with a dangerous weapon, as a party to a crime. He was convicted for having beaten a man to death with a baseball bat. Represented by counsel, he appealed his conviction, and we affirmed. The supreme court accepted his petition for review, and also affirmed his conviction.
¶3 Tomlinson, acting pro
se, then filed a postconviction motion alleging that his trial counsel was
ineffective for failing to conduct a proper pretrial investigation, advising
his wife to flee the state, telling his only trial witness to “go home” rather
than testify, and failing to provide an adequate defense. He also alleged that his postconviction
counsel was ineffective for failing to raise these issues. The circuit court found that it had
jurisdiction of the issue under State ex rel. Rothering v. McCaughtry,
205
¶4 The court found that counsel was not ineffective for failing to call certain witnesses because Tomlinson did not have a viable self-defense claim, and because the testimony of the witnesses would have undercut his defense that he was not involved in the crime. The court also found that the record established that trial counsel provided an adequate defense. Because it found that trial counsel was not ineffective, the court also concluded that postconviction counsel was not ineffective for failing to challenge trial counsel’s performance.
¶5 In his appeal to this court, Tomlinson once again argues that he received ineffective assistance of trial and postconviction counsel. He argues here that his trial counsel was ineffective is two respects: (1) for failing to investigate and call at trial witnesses who would have testified that Tomlinson acted in self-defense; and (2) because trial counsel did not follow through on representations made during the opening statement. Tomlinson also argues that the circuit court erred when it refused to conduct a Machner hearing.[2]
¶6 Tomlinson did not argue in the circuit court that trial
counsel was ineffective for failing to follow through on statements made in the
opening argument. We will not consider
an argument made for the first time on appeal. See Segall
v. Hurwitz, 114
¶7 To establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he
was prejudiced by the deficient performance.
Strickland v.
¶8 The standard of review applicable to an order of the circuit
court denying a request for an evidentiary hearing is two-part. State v. Bentley, 201
¶9 We conclude that the circuit court properly denied Tomlinson’s motion without holding a hearing. The record establishes that the theory of defense at trial was that Tomlinson was not the one who inflicted the blows that killed the victim. Tomlinson argues that his counsel should have called the witnesses who would have testified that Tomlinson acted in self-defense. Such testimony, however, would have directly contradicted the defense theory. Trial counsel was not ineffective for failing to call witnesses who would have contradicted the theory of the defense. Because the record demonstrated that Tomlinson was not entitled to relief, the circuit court did not err when it denied the motion without holding a hearing. Consequently, we affirm the order of the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.