COURT OF APPEALS DECISION DATED AND FILED December 9, 2008
David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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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. |
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Appeal Nos. |
2007AP2734 |
2003CF798 |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Keith A. Kostroski,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Keith Kostroski appeals an order denying his motion for a new trial on grounds of ineffective assistance of trial counsel.[1] Kostroski argues counsel was ineffective at the sentencing hearing by failing to retain a forensic social worker to testify regarding alternatives to incarceration. We reject Kostroski’s argument and affirm the order.
Background
¶2 In two Marathon County circuit court cases, the State charged Kostroski with a total of fourteen offenses, including two counts of first-degree sexual assault of a child, eight counts of second-degree sexual assault of a child, one count of sexual intercourse with a child, one count of exposing a child to harmful material, and two counts of prostitution by requesting to have non-marital sexual intercourse for anything of value. In exchange for his guilty pleas to four counts of second-degree sexual assault of a child, the State agreed to dismiss the remaining counts while maintaining the freedom “to argue the facts” of those counts at sentencing.
¶3 The court ultimately imposed concurrent sentences for each of the four convictions, consisting of four years’ initial confinement and three years’ extended supervision on two of the convictions, and twenty years’ probation on the other two convictions. Kostroski filed a postconviction motion for a new trial, claiming he was denied the effective assistance of trial counsel. After a hearing, the court denied Kostroski’s motion and this appeal follows.
Discussion
¶4 Kostroski argues he is entitled to a new trial on grounds he
was denied the effective assistance of trial counsel. This court’s review of an ineffective
assistance of counsel claim is a mixed question of fact and law. State v. Erickson, 227
¶5 “The benchmark for judging whether counsel has acted
ineffectively is stated in Strickland v. Washington, 466 U.S. 668
(1984).” State v. Johnson,
153
¶6 In order to establish deficient performance, a defendant must
show that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
¶7 The prejudice prong of the Strickland test is
satisfied where the attorney’s error is of such magnitude that there is a
reasonable probability that, absent the error, the result of the proceeding
would have been different.
¶8 Kostroski claims his counsel’s performance at sentencing was deficient. We disagree. At the sentencing hearing, counsel called Dr. Robert Gordon, a licensed psychologist, who testified that he reviewed the pre-sentence investigation report, administered a number of tests and rated Kostroski on different scales to assess his potential for recidivism. After describing each of the tests administered as well as his personal evaluation of Kostroski, Gordon concluded Kostroski had a low to moderate risk of reoffending and would benefit from either group or individual treatment, both of which were available in the community.
¶9 In turn, trial counsel emphasized that Kostroski had no history of violence, school problems, juvenile delinquencies or other antisocial behavior, and had only one misdemeanor conviction in his remote past. Counsel further argued that by entering guilty pleas, Kostroski showed he was on the road to rehabilitation. Counsel recommended lengthy probation, time in jail, registration, counseling, maximum supervision in the community and community service.
¶10 Citing Wiggins v. Smith, 539 U.S. 510
(2003), Kostroski nevertheless argues that by failing to call a forensic social
worker to detail the alternatives to incarceration, counsel’s performance fell
short of professional standards. Wiggins,
a capital case, is distinguishable on its facts. There, the Court took issue with the scope of
counsel’s investigation into potential mitigating evidence for purposes of
sentencing. Counsel did not expand his
investigation beyond the PSI and the department of social services
records. The Court concluded this fell
short of the professional standards that prevailed in
¶11 Even were we to conclude, however, that counsel was somehow deficient for failing to call a forensic social worker, Kostroski was not prejudiced by this claimed deficiency. At the postconviction motion hearing, Kostroski presented Elton Louis, a psychotherapist and forensic social worker, who testified that he “would have provided several alternatives for the court to consider, all of them being to maintain [Kostroski] in the treatment program.”[2] Louis further indicated he would not have recommended prison.
¶12 In denying Kostroski’s motion for a new trial, the court
emphasized it was aware of the alternatives Louis alluded to, but considered
this to be a “prison” case based on the severity of the offenses and the need
to protect the public. The court
indicated it could not ignore that the assaults were premeditated and planned, perpetrated
by manipulating young, vulnerable victims.
Ultimately, the court concluded Kostroski could not show prejudice
because the sentence would not have changed had Kostroski’s attorney presented additional
alternatives to incarceration. Because
Kostroski has failed to establish either deficient performance or prejudice, we
conclude Kostroski was not denied the effective assistance of trial counsel and
the trial court properly denied his postconviction motion for a new trial.
By
the Court.—Order
affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2005-06).
[1] The
November 16, 2007 order on appeal addressed Kostroski’s motion arising from
both
[2] Kostroski did not subpoena trial counsel to testify at the postconviction motion hearing. The court consequently determined the hearing would proceed only on the prejudice prong of Kostroski’s ineffective assistance claim.