COURT OF APPEALS DECISION DATED AND FILED October 29, 2009 David
R. Schanker Clerk of Court of Appeals |
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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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State of
Plaintiff-Respondent, v. Tyree D. Starlin,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Lundsten, Higginbotham and Bridge, JJ.
¶1 PER CURIAM. Tyree Starlin appeals a judgment of conviction and an order denying his motion for postconviction relief. We affirm.
¶2 Starlin pled no contest to one count of felon in possession of a firearm. He filed a postconviction motion to withdraw the plea on grounds of coercion and ineffective assistance of counsel. The circuit court denied the motion.
¶3 Starlin argues that he was coerced into accepting the plea
because his trial counsel refused to pursue a particular legal argument as to a
potential federal sentence. According to
Starlin, if his attorney had been willing to pursue that issue, Starlin would
have rejected the State’s plea agreement and would have allowed the federal
government to charge him with the crime instead. Starlin argues that, as a result of his
attorney’s refusal, he was coerced because he was not given a fair or
reasonable alternative to choose from. See State
v. Goyette, 2006 WI App 178, ¶30,
296
¶4 The circuit court concluded that Starlin was given a fair and reasonable choice because, instead of accepting the State’s plea offer, he could have discharged his attorney and hired another attorney to pursue the federal sentencing issue, or he could have pursued the federal issue pro se. The court found “not credible” Starlin’s testimony that he did not know he could seek representation by another attorney.
¶5 Starlin’s opening brief on appeal offers only a cursory response to the possibility that he could have sought other counsel. He asserts that he had already paid trial counsel a retainer and had “put a lot of trust and faith” in trial counsel. Starlin does not challenge the circuit court’s finding that he knew he could have hired other counsel. In his reply brief, Starlin does not address this issue, but continues to maintain that his only choices were to accept the State’s plea deal or face federal prosecution with an attorney who was refusing to pursue the sentencing issue. And, Starlin does not provide us with any case law to the effect that postconviction counsel’s refusal to pursue an issue, by itself, is considered coercion. In short, Starlin has not given us any reason to conclude that the circuit court erred in holding that Starlin had a reasonable alternative to accepting the State’s plea deal, namely, seeking other counsel.
¶6 Starlin also argues that his trial counsel was ineffective by
refusing to pursue the federal sentencing issue. To
establish ineffective assistance of counsel, a defendant must show that counsel’s
performance was deficient and that such performance prejudiced his
defense. Strickland v.
¶7 The test for deficient performance is an objective one that
asks whether trial counsel’s performance was objectively reasonable under
prevailing professional norms. See
¶8 Starlin argues that his trial counsel’s performance was
deficient because counsel refused to pursue the federal sentencing issue, which
was later decided in favor of defendants, and did so without sufficient
research into its merits. We conclude
that counsel’s performance was not deficient because counsel is not required to
argue “unclear” or “unsettled” points of law.
State v. Maloney, 2005 WI 74, ¶¶24-30, 281
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).