State v. Jayvon R. Flemming

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2023AP1304-CR Cir. Ct. No. 2017CF202

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAYVON R. FLEMMING,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Calumet County: JEFFREY S. FROEHLICH, Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1304-CR

¶1 PER CURIAM. Jayvon R. Flemming appeals a judgment convicting
him of armed robbery, as a party to a crime, and possession of a firearm as a felon,
both as a repeater. He also appeals an order denying his postconviction motion. He
argues that: (1) he received ineffective assistance of trial counsel because his lawyer
did not adequately consult with him or investigate; (2) the circuit court erred in
denying his request for successor counsel; and (3) the cumulative effect of these
errors entitles him to a new trial. We affirm.

¶2 Flemming was charged with crimes stemming from a bank robbery.
Attorney Philip Hoff was appointed to represent him. Sixteen months later, Hoff
moved to withdraw. The circuit court denied the motion without a hearing. At his
next court appearance several months later, Flemming informed the court that Hoff
had not met with him or prepared a defense and asked the court to appoint new
counsel. The court denied the request. The case proceeded to trial and the jury
found Flemming guilty on both counts. Following an evidentiary hearing, the court
denied Flemming’s postconviction motion.

¶3 Flemming first argues that he received ineffective assistance of
counsel. To prove ineffective assistance, a defendant must show both that counsel
performed deficiently and that the deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish deficiency, the defendant must
demonstrate that counsel’s representation fell below an objective standard of
reasonableness. Id. at 688. To establish prejudice, the defendant must show a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. Id. at 694. A failure to prove either prong is fatal to the
claim. Id. at 687.

2
No. 2023AP1304-CR

¶4 Flemming contends that Hoff did not spend sufficient time with him
before trial to meaningfully prepare. He asserts that Hoff spoke with him by phone
only three times and did not adequately investigate or interview witnesses.

¶5 At the postconviction hearing, Hoff testified that when he met
Flemming to discuss trial issues and potential witnesses, Flemming said that he
blacked out and could not recall anything. Hoff further testified that Flemming
claimed he had been framed by the Illuminati. As to witnesses, Hoff said that
Flemming identified two potentially helpful witnesses—his brother and
co-defendant Kenny Furdge. Hoff spoke with Flemming’s brother before trial, but
he offered nothing useful. Hoff also attempted to speak with Furdge, but Furdge’s
lawyer would not permit an interview.

¶6 Counsel has “a duty ‘to conduct a prompt investigation of the
circumstances of the case… .’” State v. Mayo, 2007 WI 78, ¶59, 301 Wis. 2d 642,
734 N.W.2d 115 (citation omitted). At the same time, “[t]he reasonableness of
counsel’s actions [is] … substantially influenced by the defendant’s own statements
or actions” and by “information supplied by the defendant.” Strickland, 466 U.S.
at 691. Given Flemming’s statement that he could not remember the events and his
identification of only two witnesses—one unhelpful and one unavailable for
interview due to his counsel’s ethical constraints—Hoff’s limited consultations and
investigation were reasonable under the circumstances. On this record, Flemming
has not shown deficient performance.

¶7 Flemming next argues that the circuit court erred in denying his
request for successor counsel. Hoff initially moved to withdraw at Flemming’s
request two months before trial, but the court denied the motion without a hearing.
At a jury status hearing the week before trial, Flemming personally asked the court

3
No. 2023AP1304-CR

for a new attorney, asserting a breakdown in communication and claiming that Hoff
had not prepared a defense and had never seen or talked to him. After hearing
Flemming’s concerns, the court again denied successor counsel.

¶8 “Indigent defendants are guaranteed the right to appointed counsel,”
but “this guarantee does not include the right to the particular attorney of the
defendant’s choosing.” State v. Darby, 2009 WI App 50, ¶28, 317 Wis. 2d 478, 766
N.W.2d 770. We review the denial of a motion for successor counsel for an
erroneous exercise of discretion. Id. In doing so, we consider the adequacy of the
circuit court’s inquiry, the timeliness of the request, and whether the alleged conflict
was so great that it likely resulted in a total breakdown in communication preventing
an adequate defense. Id., ¶29. “We [will] uphold a discretionary decision if the
circuit court logically interpreted the facts, applied the proper legal standard to the
relevant facts, and used a rational process to reach a reasonable conclusion.” Id.,
¶28.

¶9 The circuit court allowed Flemming to fully air his complaints and
questioned Hoff about trial readiness. Hoff stated that he was ready for trial and
had met with Flemming. The court also considered the effect of rescheduling a trial
nearly two years after the case had been filed and concluded that Flemming’s
grievances, tactical and dilatory, noting that Flemming refused to meet with Hoff at
the jail and refused to attend a scheduled appearance. Under Darby, the court’s
inquiry was sufficient. Flemming’s request for successor counsel was untimely, and
he did not demonstrate a complete breakdown in communication with Hoff. The
court therefore properly exercised its discretion.

¶10 Finally, Flemming argues that the cumulative effect of his trial
counsel’s alleged ineffectiveness and the circuit court’s refusal to appoint successor

4
No. 2023AP1304-CR

counsel entitles him to a new trial. Because we reject the underlying claims on the
merits, the cumulative-error claim necessarily fails.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2023-24).

5