District IV
January 24, 2014
To:
Hon. Randy R. Koschnick
Circuit Court Judge
Jefferson County Courthouse
320 S. Main Street
Jefferson, WI 53549
Carla Robinson
Clerk of Circuit Court
Jefferson County Courthouse
320 S. Main Street
Jefferson, WI 53549
Marguerite M. Moeller
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Jeffrey M. Shock
Assistant District Attorney
311 S. Center Avenue, Rm. 225
Jefferson, WI 53549
Glenn A. Smiley 520509
Jackson Corr. Inst.
P.O. Box 233
Black River Falls, WI 54615-0233
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Glenn A. Smiley (L.C. # 2007CF29) |
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Before Blanchard, P.J., Lundsten and Kloppenburg, JJ.
Glenn Smiley appeals an order denying his postconviction motion brought under Wis. Stat. § 974.06 (2011-12).[1] Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21(1). We affirm.
In 2007 Smiley was convicted of one count of repeated sexual assault of the same child. He filed the current postconviction motion in 2010. The court denied the motion in 2012.
Smiley first argues on appeal
that his trial counsel was ineffective by not arguing that police violated his
constitutional rights by not advising him of his right to remain silent and by
refusing his request for counsel. The
State correctly notes that Smiley did not raise this issue in his
postconviction motion. We usually do not
address issues that are raised for the first time on appeal, and we see no
reason to do that in this case. See Wirth v. Ehly, 93 Wis. 2d 433,
443-44, 287 N.W.2d 140 (1980), superseded
on other grounds by Wis. Stat.
§ 895.52.
In reply, Smiley states that he only recently discovered this issue with the help of a new inmate assistant, and he asks that we give him permission to return to the circuit court and raise this issue. Smiley does not need our permission to file a second motion under Wis. Stat. § 974.06. However, if he does file a second motion, the circuit court will consider whether Smiley had a sufficient reason for not raising this issue in the current motion. See § 974.06(4).
Smiley’s second argument appears to be that his trial counsel was ineffective in some manner related to Smiley’s assertion that police used a device that allows them to “see through walls.” It does not appear that Smiley raised this issue in his postconviction motion, and therefore we again do not address this issue. Even if certain references may have been made to Smiley’s assertion at the evidentiary hearing on the current motion, there was no developed argument or focus on that point.
Smiley’s third argument is that
his trial counsel was ineffective by not having a second evaluation of him done
for the purpose of supporting a plea of not guilty by reason of mental disease
or defect. 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. Washington,
466 U.S. 668, 687 (1984). We need not
address both components of the analysis if the defendant makes an inadequate
showing on one. Id. at 697. To demonstrate prejudice, the “defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is one sufficient to
undermine confidence in the outcome. Id.
At the postconviction hearing, Smiley did not present the opinion of
any expert that Smiley’s mental state at the time of the crime would have
satisfied the legal requirements of a mental disease or defect plea. Without that expert opinion, Smiley is unable
to show a reasonable probability that the ultimate outcome would have been
different if his attorney had sought a second evaluation. Therefore, Smiley has failed to show
prejudice.
To the extent Smiley’s brief also argues other issues of ineffective
assistance, we do not address those because they were not raised in the
postconviction motion.
Finally, we commend the State for providing with its brief copies of
necessary documents from the record that were not in the appellant’s appendix.
IT IS ORDERED that the order appealed from is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals