COURT OF APPEALS DECISION DATED AND FILED February 17, 2010 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Jason T. Herrera,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Jason Herrera appeals a judgment convicting him of one count of physical abuse of a child and an order denying his postconviction motion. Herrera argues (1) he was deprived of his right to a public trial and (2) he received ineffective assistance of trial counsel. We affirm.
BACKGROUND
¶2 On February 2, 2006, Herrera was charged with one count of intentional physical abuse of a child. The charge was tried to a jury on May 14 and 15, 2007. Just after the jury was sent to deliberate at 4:37 p.m., the court announced the courthouse doors would be locked. The courthouse’s exterior doors are automatically locked each day by computer at approximately 4:45 p.m. None of the parties objected to the locked doors. The jury returned with its verdict at 7:13. The court read the verdict, granted judgment in favor of the State, and scheduled a sentencing hearing.
¶3 Herrera later moved for postconviction relief, arguing he was deprived of his Sixth Amendment right to a public trial because the courthouse doors were locked while the jury deliberated and the court read the verdict. He also contended his trial counsel was ineffective for failing to object to the locked doors. The circuit court denied the motion, concluding Herrera’s attorney was not ineffective because there was no Sixth Amendment violation.
DISCUSSION
¶4 On appeal, Herrera again argues he was deprived of his rights to a public trial and the effective assistance of counsel. The State counters that Herrera forfeited his Sixth Amendment argument because he did not object to the locked doors at trial, and that Herrera’s ineffective assistance argument must fail because Herrera concedes he cannot prove he was prejudiced by the alleged error.
1. Forfeiture
¶5 The State argues Herrera forfeited his argument that he was
deprived of his right to a public trial because he did not object when the court
announced the courthouse doors would be locked.
“Issues that are not preserved at the circuit court, even alleged
constitutional errors, generally will not be considered on appeal.” State v. Huebner, 2000 WI 59, ¶10,
235
¶6 Herrera does not directly respond to this argument. We deem unrefuted arguments conceded. Charolais Breeding Ranches, LTD v. FPC Secs.
Corp., 90
¶7 Herrera’s failure to address the State’s forfeiture argument
is particularly problematic because he simply ignores recent, critical case law
on this issue. In State v. Ndina, 2007 WI
App 268, 306
¶8 Although the State discusses Ndina at length, Herrera neither
acknowledges this crucial case, nor replies to the State’s argument it supports
applying the forfeiture rule here. We will not develop an argument for
Herrera.
2. Ineffective Assistance of
Counsel
¶9 Although a defendant whose attorney does not object to an
alleged error at trial generally forfeits direct appellate review of that issue,
the defendant may challenge the failure to object within the context of an
ineffective assistance of counsel claim.
See Ndina, 306
¶10 Herrera acknowledges a defendant claiming ineffective assistance
of counsel must show both deficient performance and prejudice, but he
explicitly concedes he cannot show prejudice.
Instead, he contends, without reference to legal authority, that he does
not need to make this showing because of the nature of the right allegedly
infringed.[1] Because he has provided no legal authority
for this argument, we decline to consider it.
See
By the Court.— Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] In his reply brief, Herrera provides citations to authority for the idea that he does not need to show prejudice to succeed on a direct appeal of his Sixth Amendment claim, but he nowhere provides authority that he need not show prejudice to succeed on his ineffective assistance claim. Nor does he argue any of the authority he cites supports his argument that prejudice is not required for an ineffective assistance of counsel claim based on a public trial violation.