State v. Daimon Von Jackson, Jr.

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.
December 29, 2021
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2019AP2383-CR Cir. Ct. No. 2014CF1721

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DAIMON VON JACKSON, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Racine County: FAYE M. FLANCHER and MARK F. NIELSEN, Judges.
Affirmed.

Before Neubauer, Reilly and Grogan, JJ.

¶1 GROGAN, J. Daimon Von Jackson, Jr. appeals from a judgment of
conviction entered after his no contest plea to second-degree reckless homicide as
a repeater with the use of a dangerous weapon contrary to WIS. STAT. §§ 940.06(1)
No. 2019AP2383-CR

(2013-14),1 939.62(1)(c), and 939.63(1)(b) (hereinafter “second-degree reckless
homicide”), and from an order denying his postconviction motion seeking to
withdraw his plea.2 On appeal, Jackson asserts he should be allowed to withdraw
his plea because: (1) he received ineffective assistance of trial counsel; (2) the
circuit court erred in denying his request to have trial counsel replaced; and (3) the
interests of justice require plea withdrawal or resentencing to correct a miscarriage
of justice. Because we conclude Jackson’s trial counsel was not ineffective, the
circuit court did not err in denying Jackson’s request to replace trial counsel, and
the interests of justice require neither plea withdrawal nor resentencing, we affirm.

I. BACKGROUND

¶2 On December 15, 2014, the State filed a Complaint charging
Jackson with multiple counts related to the death of Maurice Carter. The State
charged Jackson with: (1) one count of felony murder party to a crime (PTAC) as
a repeater while using a dangerous weapon contrary to WIS. STAT. §§ 943.32(2),
940.03, 939.05, and 939.62(1)(c); (2) possession of a firearm by a felon—PTAC
contrary to WIS. STAT. §§ 941.29(2)(a),3 939.50(3)(g), and 939.05; and (3) armed
robbery with use of force—PTAC as a repeater contrary to WIS. STAT.
§§ 943.32(1)(a) and (2), 939.50(3)(c), 939.05, and 939.62(1)(c). As the basis for

1
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise
noted.
2
The Honorable Faye M. Flancher entered the judgment of conviction. The Honorable
Mark F. Nielsen entered the postconviction order.
3
2015 Wis. Act 109, § 8 repealed WIS. STAT. § 941.29(2) (2013-14). 2015 Wis. Act
108, § 6 renumbered § 941.29(1) to § 941.29(1m) and amended subsection (1m) to read, as
relevant here, that “[a] person who possesses a firearm is guilty of a class G felony if any of the
following applies: (a) The person has been convicted of a felony in this state.”

2
No. 2019AP2383-CR

the charges, the State alleged that on December 11, 2014, Jackson was involved in
Carter’s death and that Carter’s death occurred during the course of an attempted
robbery with use of a dangerous weapon.

¶3 Per the Complaint, Jackson and two other individuals, Bobby
Henderson and Travenn Webster, drove to the 1000 block of Grand Avenue in
Racine, Wisconsin, where two of the men approached Carter. Tauries Murry, who
witnessed the altercation between Carter and the two men from his nearby vehicle,
described the suspects to police. He described the first suspect “as a shorter, fat,
caramel-skinned black male wearing a light grey hoodie and grey sweatpants.” He
described the second suspect as “taller, dark skinned, wearing a black sweatshirt
and black hat.” Murry reported “he heard at least one gunshot and” saw “Carter
fall to the ground.” He also reported having seen the two men lean over Carter
after Carter had fallen to the ground and that it looked like the two men were
“going through [Carter’s] pockets.”

¶4 Officers found a handgun ammunition magazine with Henderson’s
fingerprints at the crime scene. The following morning, December 12, 2014,
officers conducted a traffic stop involving Henderson, “who admitted his
involvement.” Henderson identified Jackson and Webster as having also been
involved. According to Henderson, Webster dropped him and Jackson off with
the plan that he and Jackson would rob Carter and Murry. Henderson reported he
was heading toward Murry’s vehicle when “he heard Jackson scuffling with Carter
at which time he heard two gunshots” and that Jackson later stated he shot Carter
because he believed Carter had a gun.

¶5 Jackson was involved in a separate traffic stop on December 12,
2014. The officers took Jackson to the police station subsequent to the stop, but

3
No. 2019AP2383-CR

he was not under arrest or in custody at that time. When officers initially spoke to
Jackson, he denied having any knowledge of the Carter incident. Jackson was
eventually placed under arrest during the course of the interview and officers
administered Miranda4 warnings. After the Miranda warnings were
administered, Jackson admitted his involvement and asserted he had been “acting
as a lookout for the robbery,” that he did not shoot Carter, and that they did not
intend to kill Carter.

¶6 Jackson made an initial appearance on December 15, 2014, and he
entered not guilty pleas on all counts on January 22, 2015. Multiple attorneys
represented Jackson throughout the course of this case. His first attorney moved
to withdraw at the July 28, 2015 status hearing, citing a breakdown in attorney-
client communication. The circuit court granted counsel’s motion and explained
to Jackson that “[t]his is not going to be a revolving door. You’re not going to
come back and back to this Court and say I want another lawyer. There’s been a
breakdown until you get a lawyer that you’re satisfied with. The next lawyer you
get is the lawyer you’re going to have to keep.” 5 Jackson confirmed he
understood.

¶7 The Wisconsin State Public Defender (SPD) subsequently appointed
another attorney to represent Jackson. Like his first attorney, Jackson’s second
attorney also sought to withdraw—this time within a matter of weeks—due to a
breakdown in communication stemming from an acrimonious relationship

4
Miranda v. Arizona, 384 U.S. 436 (1966).
5
The Honorable Eugene A. Gasiorkiewicz presided over this status hearing, as he
initially presided over this matter before it was transferred to the Honorable Faye M. Flancher.

4
No. 2019AP2383-CR

between counsel and Jackson’s mother. Jackson did not object to the withdrawal
and the court granted counsel’s motion. The court again reminded Jackson “that
this is not going to be a revolving door, so it’s not, you’re not going to be allowed
to come back to this courtroom and ask for additional lawyers until you get one
that you are comfortable with[.]” Jackson again confirmed he understood.

¶8 The SPD appointed a third attorney for Jackson on September 28,
2015. During the course of his representation, counsel filed a Miranda-
Goodchild6 motion seeking to exclude Jackson’s admission that he was the
lookout during the incident that resulted in Carter’s death. The circuit court held a
hearing on Jackson’s motion on January 8, 2016, and on February 22, 2016, the
court issued a written order denying Jackson’s motion.7 During the course of his
representation, Jackson’s third attorney also successfully sought dismissal of count
three of the Complaint (armed robbery with use of force as PTAC).8

¶9 Jackson’s trial was set for March 1, 2016; however, on February 23,
2016, at what was supposed to be the final pretrial conference, the court addressed
the State’s motion for an adjournment because Webster—who the State needed to
call as a trial witness—was unavailable. At the February 23 conference, Jackson’s
attorney informed the court that Jackson did not feel counsel had represented his
best interests and that Jackson had “multiple complaints” about him. When the
court explained that counsel was not Jackson’s “hand puppet” and that counsel

6
Miranda, 384 U.S. 436; State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d
753 (1965).
7
Judge Gasiorkiewicz presided.
8
Count three was dismissed as duplicative of count one.

5
No. 2019AP2383-CR

would not necessarily “do everything you [Jackson] ask him to do[,]” Jackson
responded that counsel “hasn’t done nothing I asked him to do.” The court
thereafter rejected Jackson’s attempt to discharge his third attorney. However, the
court ultimately granted a subsequent withdrawal request because of a medical
issue that rendered the third attorney unavailable.

¶10 The SPD appointed Jackson’s fourth attorney (hereinafter “trial
counsel”) on March 11, 2016. Trial counsel attended hearings on March 17,
March 24, August 9, and October 17, 2016. At the August 9 hearing, the court set
November 1, 2016, as the new trial date. The court held a final pretrial conference
on October 17, 2016, at which time the court also addressed Jackson’s pro se
motion asking for a new lawyer to replace trial counsel.9 When the court asked
Jackson why he wanted trial counsel to withdraw, Jackson stated trial counsel
“doesn’t keep in contact with me. He hasn’t been properly representing me at all.
He hasn’t filed any motions on my behalf that I asked him about. He hasn’t done
anything for me.” The following exchange between the court and Jackson ensued:

THE COURT: Well, just because you ask [trial counsel] to
file motions, doesn’t mean that he will or should.

[JACKSON]: But if he says he --

THE COURT: Stop. Please don’t interrupt me when I’m
speaking. That’s my one rule. I give you the courtesy of
listening, I expect the same of you. This is a case that is
over two years old. You have had a number of other
attorneys representing you.

I can see that [third counsel] represented you. This has
been scheduled for trial many times. The information was
filed back on January 22nd of 2015. I will not allow [trial

9
Judge Flancher presided.

6
No. 2019AP2383-CR

counsel] to withdraw, whether it be on your request or
anyone else’s.

So, [trial counsel], I ask that you meet with [Jackson]
and that you also be prepared to proceed on November 1st.
Again it is the number one trial.

Trial counsel’s next meeting with Jackson was on the trial date.

¶11 Prior to trial, in an email dated October 17, 2016, the State presented
a plea offer in which it agreed to amend the felony murder PTAC charge to
second-degree reckless homicide PTAC as a habitual offender while armed,
dismiss and read in count two, dismiss and read in the charges filed in Racine
County case No. 2016CF252,10 and to recommend prison without requesting a
specific term of imprisonment. Although the State indicated in the email that the
offer would remain “open until the Friday before the trial[,]” it told the court the
same day that it would agree to leave all offers open until the day of trial.

¶12 On November 1, 2016, the scheduled trial date, trial counsel met
with Jackson to discuss whether to proceed to trial or to accept the plea offer
where Jackson would plead to second-degree reckless homicide in exchange for a
dismissal of the felon-in-possession charge and all the drug charges in his other
case.11 Jackson ultimately chose to plead no contest to second-degree reckless
homicide as a repeater with use of a dangerous weapon.

10
Racine County case No. 2016CF252 involved multiple felony drug charges. Trial
counsel represented Jackson in that matter as well.
11
Nothing in the record clearly explains why the offer Jackson ultimately pled to was
second-degree reckless homicide without the PTAC added as opposed to a prior offer of second-
degree reckless homicide as PTAC. What the record does show is that “PTAC” is crossed out on
the plea questionnaire, which Jackson admitted he signed and reviewed. Moreover, the plea
questionnaire has only the second-degree reckless homicide elements attached to it—not PTAC.

7
No. 2019AP2383-CR

¶13 At the plea hearing on November 1, 2016, the circuit court put
Jackson under Oath before conducting the plea colloquy.12 The circuit court
confirmed Jackson understood the elements of that charge and clarified he was not
pleading as party to a crime. Prior to accepting Jackson’s plea, the circuit court
also confirmed with Jackson that he had reviewed the Amended Information with
trial counsel.13 At the State’s request, the circuit court further confirmed Jackson
did not need additional time to speak with his attorney regarding the fact he was
not pleading to the second-degree reckless homicide as PTAC, as well as that he
was satisfied with trial counsel’s representation. The circuit court thereafter
accepted Jackson’s no contest plea. Pursuant to the plea agreement, count two—
possession of a firearm by a felon as PTAC—was dismissed but would be read in
at sentencing, and the three charges of manufacture or delivery of cocaine as a
second and subsequent offense in case No. 2016CF252 were dismissed but would
be read in at sentencing. The circuit court withheld sentencing to allow time for
completion of a presentence investigation (PSI).

¶14 Sentencing was initially scheduled for January 17, 2017; however,
the court adjourned sentencing after granting trial counsel’s request to withdraw
due to Jackson having filed a grievance against him with the Office of Lawyer
Regulation (OLR). The public defender’s office appointed Jackson a new attorney
(hereinafter “sentencing counsel”) on February 27, 2017.

12
Judge Flancher presided.
13
The Amended Information included two counts: (1) second-degree reckless homicide
as a repeater with use of a dangerous weapon; and (2) possession of a firearm by a felon as
PTAC.

8
No. 2019AP2383-CR

¶15 The sentencing hearing ultimately took place on June 12, 2017.
After reviewing the PSI, hearing argument from the State and sentencing counsel,
and hearing from members of both Carter’s and Jackson’s families, the circuit
court considered the pertinent sentencing factors. The sentencing court focused on
Jackson’s extensive criminal record dating back to 2003, his repeated revocation
from probation, and repeated violations of conditions while on supervision. The
sentencing court noted that Jackson was on federal court supervision at the time he
committed this offense and that despite being twenty-seven years old without any
physical or mental disabilities, he had “virtually no employment history.” The
sentencing court said it “fully believe[d] based on everything that [it] read” that
Jackson was either “the shooter in this case or involved in this shooting.” The
court sentenced Jackson to a total of thirty years in prison, bifurcated to twenty
years of initial confinement and ten years of extended supervision. Judgment was
entered on June 13, 2017, and an amended judgment was later entered on
September 12, 2017, following a restitution hearing.

¶16 On November 9, 2018, with new counsel appointed to assist with
postconviction proceedings, Jackson filed a postconviction motion seeking plea
withdrawal. Jackson asserted multiple grounds in support of his plea withdrawal
request. First, he asserted trial counsel rendered ineffective assistance of counsel
and requested a hearing pursuant to State v. Machner, 92 Wis. 2d 797, 285
N.W.2d 905 (Ct. App. 1979). Second, Jackson requested a hearing pursuant to
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), to address his assertion
that his plea was not knowing, voluntary, and intelligent due to a constitutionally
insufficient plea colloquy. Alternatively, Jackson argued the circuit court had
erred in denying his request to replace trial counsel prior to the trial date and that

9
No. 2019AP2383-CR

he was entitled to a hearing pursuant to State v. Lomax, 146 Wis. 2d 356, 432
N.W.2d 89 (1988).

¶17 The postconviction court held a hearing on Jackson’s motion on
September 13, 2019. Both trial counsel and Jackson testified. Trial counsel
confirmed he was appointed to represent Jackson in mid-March 2016 and that he
had been practicing as a criminal defense attorney since 1985. Trial counsel also
confirmed he met with Jackson a total of four times—three times prior to Jackson
entering his no contest plea and once after—and that he “[c]ould have done better”
as to the number of times he met with Jackson. However, trial counsel testified he
did not believe the outcome of Jackson’s case would have changed had he met
with Jackson more frequently.

¶18 Trial counsel also confirmed he requested discovery in this matter
shortly after his appointment and that although he received and reviewed a
surveillance video from the Potawatomi casino, interrogation videos of Jackson,
Henderson, and Webster, and DNA evidence, he did not show the videos to
Jackson. Rather, he explained he presented that evidence to Jackson via the police
reports. According to trial counsel, Jackson’s prior attorneys had also discussed
the facts with Jackson and had provided Jackson with evidence and discovery,
including police reports.

¶19 After Jackson waived attorney-client privilege, trial counsel
described Jackson’s decision to accept the State’s plea offer. According to trial
counsel, Jackson’s decision to accept the offer was based at least in part on the
“[s]trength of the State’s case” as to the pending charges, which included
anticipated testimony from Jackson’s two co-actors, Henderson and Webster, who
would identify Jackson as the shooter. Trial counsel also confirmed he reviewed

10
No. 2019AP2383-CR

CCAP entries for Henderson and Webster to determine what they were to receive
in exchange for testifying against Jackson and that he had requested that the State
provide any further consideration not reflected in those entries.

¶20 Trial counsel stated the primary defense strategy was to attack the
credibility of Henderson’s and Webster’s testimony and that in preparing for trial,
he reviewed the reports, the evidence, and spoke with Jackson. Based on his time
sheets, trial counsel testified he spent 5.9 hours reviewing discovery, evidence,
and transcripts, 6.5 hours reviewing Jackson’s interrogation, 2.2 hours reviewing
Webster’s interrogation, 8 hours reviewing other materials, and 0.5 hours
reviewing the transcript from the Miranda-Goodchild hearing.14 He also testified
to having spent 1.3 hours meeting with Jackson on November 1, 2016.

¶21 As to the plea colloquy, trial counsel testified he had reviewed the
plea offer, the elements of second-degree reckless homicide as a repeater while
armed, the plea questionnaire, and the waiver of rights form with Jackson. The
plea questionnaire showed that although the charge was identified as “second
degree reckless homicide PTAC (while armed)[,]” “PTAC” was crossed out. Trial
counsel did not recall Jackson having indicated a lack of understanding as to his
plea.

¶22 Jackson also testified at the postconviction hearing. He testified
about his concerns with trial counsel’s purported “lack of preparation” and
“communication[,]” as well as his attempts to contact trial counsel personally,
“through family[,]” and through the public defender’s office. Jackson further

14
The postconviction court found that trial counsel spent “23.4 hours … reviewing the
discovery.”

11
No. 2019AP2383-CR

testified that although none of his attorneys had reviewed video evidence with
him, prior counsel had provided him with copies of the police reports, autopsy
reports, civilian statements, and co-defendant statements.

¶23 As to his interactions with trial counsel on November 1, 2016—the
date of his no contest plea—Jackson testified he spoke with trial counsel regarding
the State’s plea offer and that he did not believe trial counsel was prepared for trial
based on his limited communication with trial counsel.15 Jackson confirmed he
went over the plea questionnaire and waiver of rights with trial counsel and that he
signed the questionnaire. Jackson admitted during his testimony at the Machner
hearing that PTAC was crossed off on the plea questionnaire. Jackson also
confirmed he was not under the influence of anything, that he had an HSED, and
he was able to read and write when he entered his plea. Although he testified trial
counsel went over the elements of the crime he was pleading to—second-degree
reckless homicide as a repeater with a dangerous weapon—Jackson denied that the
elements were presented in writing or attached to the plea questionnaire during his
conversations with trial counsel. He further testified trial counsel told him he
“wouldn’t be able to beat party to a crime.”

¶24 According to Jackson, he chose to accept the State’s plea offer rather
than proceed to trial because he “didn’t have a choice. If I would have went in
with [trial counsel, who] wasn’t prepared for trial, I would have got a life sentence
versus getting something that was possibly frees [sic].” He further testified trial
counsel had explained that if he accepted the plea, Jackson would be “facing

15
At the plea hearing, Jackson confirmed he understood that trial counsel had been
prepared to proceed to trial that day.

12
No. 2019AP2383-CR

reasonable time versus substantial time” and that trial counsel recommended he
accept the plea because he “couldn’t beat the party to a crime of felony murder
and armed robbery.”

¶25 The postconviction court issued a thirty-five page written decision
on November 14, 2019, thoroughly explaining its denial of each issue raised in
Jackson’s motion.16

¶26 First, the postconviction court addressed the purported defects in the
plea colloquy and ultimately determined Jackson’s plea was knowing, intelligent,
and voluntary. It began by identifying the claims Jackson raised: (1) the circuit
court did not tell Jackson the elements of the amended charge; (2) the circuit court
did not advise him it did not have to follow the plea agreement; and (3) the circuit
court did not explain the difference between pleading and not pleading to PTAC
liability. The postconviction court rejected Jackson’s claim that the circuit court
did not warn him it was not required to follow the parties’ recommendations
because: (1) that statement was on the change-of-plea questionnaire Jackson
signed; and (2) the State followed its agreement to recommend prison without

16
Jackson raised three arguments in his postconviction motion. First, he claimed he
received ineffective assistance because trial counsel: (1) “only met with Mr. Jackson three times
outside of court”; (2) failed to timely request discovery; (3) waited until the day before trial to ask
for plea agreements his codefendants had with the State; (4) “never reviewed the discovery with”
him; (5) failed to “develop a defense strategy that would allow [him] to make a knowing,
intelligent and voluntary decision” about proceeding to trial or accepting a plea offer; (6) let
Jackson “plead guilty as a principal” despite evidence that others “were directly involved in
shooting” the victim; and (7) counsel’s representation caused a “miscarriage of justice.”

Second, in the alternative, he moved the court to vacate his judgment of conviction
because his plea colloquy was purportedly deficient and violated State v. Bangert, 131 Wis. 2d
246, 389 N.W.2d 12 (1986). Third, also in the alternative, he requested that the judgment of
conviction be vacated because the circuit court erroneously denied his request for new counsel.

13
No. 2019AP2383-CR

arguing for a specific period of confinement. The postconviction court’s written
order explained that although the circuit court had not read the elements of
second-degree reckless homicide by use of a dangerous weapon as repeater into
the record, the elements had been attached to the change-of-plea questionnaire
Jackson signed and that Jackson confirmed he was aware of the elements.

¶27 As to the alleged plea colloquy deficiency regarding the fact that the
second-degree reckless homicide charge was not PTAC, the postconviction court
concluded “the record was explicit that the defendant was pleading as a principal
rather than an accomplice or conspirator. The [circuit] court could not have been
clearer in explaining … in plain terms that regardless of his understanding of party
to a crime liability, he was in fact pleading as a principal.” This included the
circuit court’s inquiry as to whether Jackson wanted more time to discuss pleading
to commission of the crime versus pleading as PTAC and Jackson declined the
opportunity to do so. The postconviction court concluded: “There is clearly no
failure on the part of the trial court to conduct an adequate colloquy on this issue,
and the defendant waived any current argument that he needed more explanation
when he declined the opportunity at the plea hearing.”17

¶28 The postconviction court flatly rejected Jackson’s contention that he
was confused by the circuit court’s colloquy, believing that he was pleading as an

17
Jackson did not assert a plea withdrawal challenge based on a breach of the pretrial
offer by the State or that there was a defect in the plea colloquy as to the fact that the armed
robbery with use of force charge had been dismissed. There is nothing in the plea colloquy
indicating there was any misunderstanding by Jackson or the attorneys as to either of these issues,
and although the circuit court had inadvertently referenced the armed robbery with use-of-force
charge at the final pretrial hearing, there was no indication at the change-of-plea hearing that the
circuit court was confused about whether that charge had been dismissed. Thus, neither of these
issues were addressed by the postconviction court, and as is evident in our discussion, neither of
these issues have been raised on appeal.

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No. 2019AP2383-CR

accomplice and not a principal. The court stated: “The trial judge specifically
inquired whether the defendant was pleading as a party to crime and was told he
was not. The defendant was sitting right there and heard that. I do not credit the
claim that the defendant understood that NOT pleading as a party to a crime meant
that he WAS pleading as a party to the crime.” The court further noted that
Jackson’s “no contest” plea was not making any admissions. Id. As to any
prejudice claimed from the plea colloquy, the postconviction court stated:
“Whether he plead under one theory or the other, he knew he was pleading to
Second Degree Reckless Homicide and he knew what the penalties were. He was
convicted as he expected to be. He was sentenced within the range he was warned
about. The defendant cannot possibly make out a claim of prejudice arising from
this claimed error.”

¶29 Second, as to Jackson’s ineffective assistance of counsel claim, the
postconviction court first determined that it did not find deficiency as to a
“laundry list” of issues Jackson raised, including: (1) potential violations of the
rules of professional conduct related to trial counsel’s representation of Jackson;
(2) trial counsel’s review of discovery and trial preparation; (3) trial counsel’s
purported failure to follow Jackson’s instructions regarding motions Jackson
wanted to pursue; (4) trial counsel’s not having reviewed the transcript of the
Miranda-Goodchild hearing until shortly before the scheduled trial date; and
(5) trial counsel’s failure to review the DVD evidence with Jackson.

¶30 The postconviction court then identified the “core” of Jackson’s
complaints as a “failure to keep in communication with his client and to establish
an attorney client relationship.” The postconviction court concluded that although
it “cannot point to a particular harmful consequence of [trial counsel’s] failure [to
communicate],” trial counsel was nevertheless deficient based on his failure to

15
No. 2019AP2383-CR

visit and confer with Jackson more frequently. The postconviction court
specifically addressed Jackson’s contention that his trial counsel was not prepared
for trial and the interrelationship between communication and preparedness. It
found the case was ready to go to trial, trial counsel was prepared, and lack of
communication does not have a direct correlation to preparedness.18

¶31 Despite concluding trial counsel’s failure to confer and meet with
Jackson constituted deficient performance, the postconviction court determined
this deficient performance did not prejudice Jackson. In reaching its conclusion,
the postconviction court found Jackson was “not a credible witness”19 and
therefore did not accept Jackson’s assertion he would have rejected the plea offer
and would have instead proceeded to trial had trial counsel communicated more
effectively. Rather, the court explained:

Jackson fired or attempted to fire all four [of his attorneys]
due to his perception that each was not serving his best
interests and did not visit him enough. This leads the court

18
Jackson did not raise any concerns regarding the submission of jury instructions or
witness lists when identifying the alleged unpreparedness of counsel. Thus, this issue was not
addressed by the postconviction court, nor has it been raised by Jackson in this appeal.
19
The Dissent casts aside the credibility findings made by the postconviction court and
decides it is in a better position to determine credibility—contrary to longstanding law that the
circuit court who hears and sees the witnesses is the court better equipped to make credibility
findings. See State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (“this court
will not exclude the circuit court’s articulated assessments of credibility and demeanor, unless
they are clearly erroneous”); Jezeski v. Jezeski, 2009 WI App 8, ¶8, 316 Wis. 2d 178, 763
N.W.2d 176 (“Unless the testimony is inherently incredible, an appellate court may not substitute
its judgment for that of the fact finder.” (emphasis added)); State v. Angiolo, 186 Wis. 2d 488,
495-96, 520 N.W.2d 923 (Ct. App. 1994) (“When the testimony presented at the hearing
conflicts, the trial court is the ultimate arbiter of the credibility of witnesses. Further, if a trial
court fails to make a finding of fact that appears from the record to exist, an appellate court may
assume the fact was determined in support of the decision.” (internal citation omitted)); WIS.
STAT. § 805.17(2) (2019-2020) (“Findings of fact shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge the credibility of the
witnesses.”).

16
No. 2019AP2383-CR

to conclude that any anxiety the defendant felt about being
represented by [trial counsel] was not necessarily
occasioned by anything having to do with [trial counsel]
and was instead occasioned by the frustration of a
defendant who discovered that none of his attorneys
possessed a “magic wand” to make his case better than it
was. This history undermines Mister Jackson’s credibility,
and I do find that he is not a credible witness.

….

Mister Jackson had good reason to fear trial, given the
evidence against him and without regard to his opinion of
his attorney. The record supports [trial counsel’s]
testimony at the hearing that the defendant decided to
forego trial and take the plea because of the strength of the
State’s case against him. I accept [trial counsel’s]
testimony on the content of his plea conversation with
Jackson as credible.

(Internal citation omitted.) The postconviction court went on to note that Jackson
“had objectively good reasons to take the benefit of the plea that was offered,
again without regard to his opinion of [trial counsel]” due to the significant
reduction in Jackson’s incarceration exposure on the amended charge and to the
dismissals of the remaining charge in this matter and of multiple charges in the
pending drug-related matter. The postconviction court specifically noted that
despite the twenty-six years of initial incarceration Jackson potentially faced on
the charge he pled no contest to, that exposure was “dwarfed by the 45 years of
initial incarceration he faced if convicted on the charges in the Information at trial
and is also less than the 27 years of initial incarceration he faced on the drug
charges.”

¶32 The postconviction court likewise rejected “Jackson’s claim that his
plea was coerced by [trial counsel’s] errors,” noting Jackson’s claim was
“contradicted by [Jackson’s] own statements at the time of the change of plea.”
Specifically, the court pointed to the signed plea questionnaire form, Jackson’s

17
No. 2019AP2383-CR

responses to the circuit court during the plea colloquy as to his understanding of
the charge he was pleading to, and Jackson’s confirmation that he was satisfied
with trial counsel’s representation.20

¶33 The postconviction court likewise rejected Jackson’s assertion that
he was entitled to plea withdrawal based on the circuit court’s refusal to grant his
motion requesting another new attorney. It identified the following in explaining
its reasons for doing so: (1) Jackson made similar complaints about each of his
prior attorneys; (2) the trial date was just a few weeks away when Jackson made
his request; and (3) the case was nearly two years old and had previously been
scheduled for trial multiple times. The postconviction court distinguished
Jackson’s case from Lomax, 146 Wis. 2d 356, because the circuit court here gave
Jackson an opportunity to explain why he wanted to fire trial counsel and obtain a
new attorney. The postconviction court determined the circuit court’s
discretionary decision denying Jackson’s request was not erroneous because the
circuit court provided Jackson with an opportunity to explain his request and it
provided sufficient reasons for denying Jackson’s request. Finally, the

20
The Dissent develops arguments that Jackson never made. Jackson did not assert an
ineffective assistance of counsel claim based on an alleged breach of the pretrial plea offer by the
State. He did not claim that there was a breach or that trial counsel failed to object to a breach.
Jackson’s postconviction challenge as to his plea was that the court did not discuss the specific
elements of the charge to which he was pleading (without PTAC). Jackson’s postconviction
motion does not challenge his trial counsel’s action with respect to the removal of PTAC at all.

Although the Dissent suggests that counsel was ineffective for agreeing that the
Complaint provided a factual basis to support Jackson’s plea, Jackson never asserted this as a
basis for ineffective assistance, nor did he contend that his trial counsel should have corrected the
circuit court during the final pretrial hearing when the circuit court inadvertently referred to the
armed robbery charge, likely because, as noted, that charge had been dismissed.

Because Jackson never made these claims, the postconviction court did not address these
issues under an ineffective assistance of counsel rubric and, not surprisingly, Jackson did not
make these claims on appeal.

18
No. 2019AP2383-CR

postconviction court concluded Jackson’s “conviction and sentence do not present
a manifest injustice on this record” and therefore did not provide a basis for plea
withdrawal. Jackson now appeals.

II. DISCUSSION

¶34 Jackson asserts three reasons he believes he is entitled to plea
withdrawal: (1) he received ineffective assistance of counsel; (2) the circuit court
erred in denying his request to replace trial counsel; and (3) the interests of justice
so demand. He also argues this matter should be remanded for resentencing in the
interests of justice. We are not persuaded.

¶35 Whether to allow a defendant to withdraw a plea is a matter within
the circuit court’s discretion, which we review under the erroneous exercise of
discretion standard. State v. Thomas, 2000 WI 13, ¶13, 232 Wis. 2d 714, 605
N.W.2d 836. “We will sustain an exercise of discretion if the circuit court
‘examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.’” State v. Cooper, 2019 WI 73, ¶13, 387 Wis. 2d 439, 929 N.W.2d 192
(citation omitted). Findings of facts will be upheld unless clearly erroneous. State
v. Sholar, 2018 WI 53, ¶35, 381 Wis. 2d 560, 912 N.W.2d 89.

¶36 A defendant seeking to withdraw a no contest or guilty plea after
sentencing must establish a manifest injustice by clear and convincing evidence.
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996); State v. Booth,
142 Wis. 2d 232, 235, 418 N.W.2d 20 (Ct. App. 1987). A defendant can meet this
standard if the defendant received ineffective assistance of counsel. Bentley, 201
Wis. 2d at 311. “[W]hen applying the manifest injustice test, ‘a reviewing court
may look beyond the plea hearing transcript’ to the totality of the circumstances.”

19
No. 2019AP2383-CR

State v. Cain, 2012 WI 68, ¶31, 342 Wis. 2d 1, 816 N.W.2d 177 (citation omitted).
We therefore review “the entirety of the record to determine whether, considered
as a whole, the record supports the assertion that manifest injustice will occur if
the plea is not withdrawn.” Id.

¶37 “Whether trial counsel should be relieved and a new attorney
appointed is a matter within the circuit court’s discretion.” State v. Jones, 2010
WI 72, ¶23, 326 Wis. 2d 380, 797 N.W.2d 378. On appeal, we “sustain the circuit
court’s decision if the court ‘examined the relevant facts, applied a proper standard
of law, and, using a demonstrated rational process, reached a conclusion that a
reasonable judge could reach.’” Id. (citation omitted).

A. Ineffective Assistance of Counsel

¶38 “A criminal defendant has the constitutional right to effective
assistance of counsel.” Sholar, 381 Wis. 2d 560, ¶32. A defendant is denied that
right when counsel performs deficiently and the deficiency is prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Pitsch, 124 Wis. 2d
628, 633, 369 N.W.2d 711 (1985). “An ineffective assistance of counsel claim
presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13, 382
Wis. 2d 273, 914 N.W.2d 95. We do not reverse the circuit court’s findings of
fact unless clearly erroneous. Id. “Findings of fact include ‘the circumstances of
the case and the counsel’s conduct and strategy,’” and those findings will not be
disturbed unless clearly erroneous. State v. Thiel, 2003 WI 111, ¶21, 264 Wis. 2d
571, 665 N.W.2d 305 (citation omitted). Whether counsel’s performance was
deficient and whether the deficient performance was prejudicial are questions of
law we review de novo. State v. Sanchez, 201 Wis. 2d 219, 236, 548 N.W.2d 69

20
No. 2019AP2383-CR

(1996). A defendant must satisfy both prongs to establish ineffective assistance of
counsel. State v. Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695.

1. Deficiency

¶39 “The first prong of the Strickland analysis requires us to compare
counsel’s performance to the ‘wide range of professionally competent
assistance.’” Pico, 382 Wis. 2d 273, ¶19 (quoting Strickland, 466 U.S. at 690).
Counsel’s conduct is deficient only if it “falls outside that objectively reasonable
range[.]” Pico, 382 Wis. 2d 273, ¶19. “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’
not whether it deviated from best practices or most common custom.” Harrington
v. Richter, 562 U.S. 86, 105 (2011) (citation omitted). We presume counsel’s
conduct fell within that range. Strickland, 466 U.S. at 689 (“[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]”). “[A] defendant must show specific acts or
omissions of counsel that are ‘outside the wide range of professionally competent
assistance.’” State v. Arredondo, 2004 WI App 7, ¶24, 269 Wis. 2d 369, 674
N.W.2d 647 (citation omitted). 21

21
As indicated above, in his postconviction motion, Jackson presented a list of vague
reasons as to how trial counsel was deficient. On appeal, Jackson asserts only that trial counsel
was deficient as to lack of meeting and conferring with Jackson prior to the jury trial date. To the
extent Jackson raised additional arguments as to trial counsel’s purported deficiencies before the
postconviction court but does not pursue those issues on appeal, we do not address those
arguments. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285
(Ct. App. 1998) (“an issue raised in the trial court, but not raised on appeal, is deemed
abandoned”). We address only the question of whether trial counsel’s communication with
Jackson was deficient.

21
No. 2019AP2383-CR

¶40 On appeal, Jackson alleges trial counsel’s performance was deficient
solely because he failed to properly meet or otherwise communicate with Jackson,
including after the circuit court instructed him to do so two weeks prior to the
scheduled trial date. Despite this assertion, Jackson has not identified what it was
that trial counsel failed to properly communicate or how additional communication
or meetings with trial counsel would have ultimately impacted his decision to
either accept the State’s plea offer or to instead proceed to trial. He also has not
identified what counsel failed to do in preparing for trial despite asserting he
accepted the State’s plea offer because trial counsel was not prepared to proceed
with trial. The postconviction court found Jackson’s reason for taking the plea
bargain to be not credible, and that finding is not clearly erroneous.

¶41 The State argues that even though trial counsel met with Jackson just
four times overall, that may have been sufficient given the circumstances present
here. See United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988) (noting the
court was unaware of any “‘case establishing a minimum number of meetings
between counsel and client prior to trial necessary to prepare an attorney to
provide effective assistance of counsel’” because “an experienced attorney ‘can
get more out of one interview with a client’ … than a less well-trained lawyer
could get out of several.” (citation omitted)). Trial counsel had three decades of
experience representing criminal defendants at the time he was appointed here,
and Jackson’s three previous attorneys had already substantially prepared the case.
Prior counsel had challenged Jackson’s statements through a Miranda-Goodchild
hearing and obtained dismissal of the third count as duplicative, and the record
further demonstrates that Jackson’s prior counsel provided him with all the paper
discovery, the police reports, the statements from witnesses and co-defendants,
and the autopsy reports. After his appointment, trial counsel spent significant time

22
No. 2019AP2383-CR

reviewing the file and the materials, and he requested additional discovery,
reviewed the surveillance video from the casino, interrogation videos of Jackson,
Henderson, and Webster, and the DNA evidence. Like prior counsel, he also met
with Jackson to go over the facts of the case, talk about the file, discuss potential
witnesses, and review Jackson’s confession to being the lookout for the robbery.

¶42 Jackson clearly wanted more communication with trial counsel, and
trial counsel admitted at the Machner hearing that when it came to how many
times he met with or otherwise communicated with Jackson about his case, he
“[c]ould have done better” and that he “should have met with [Jackson]” after the
circuit court instructed him to do so. We agree trial counsel could have done
better and we will assume his failure to communicate constituted deficient
performance. However, as did the postconviction court, we ultimately resolve this
matter by addressing Strickland’s prejudice prong. See Strickland, 466 U.S. at
697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.”).

2. Prejudice

¶43 “To prove prejudice, a defendant must establish that ‘particular
errors of counsel were unreasonable’ and ‘that they actually had an adverse effect
on the defense.’” Sholar, 381 Wis. 2d 560, ¶33 (citation omitted). On appeal, we
therefore determine whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Here, Jackson must
show “‘that there is a reasonable probability that, but for the counsel’s errors, he

23
No. 2019AP2383-CR

would not have pleaded [no contest] and would have insisted on going to trial.’”
See Bentley, 201 Wis. 2d at 312 (citation omitted). “A probability sufficient to
undermine confidence exists when there is ‘a substantial, not just conceivable,
likelihood of a different result.’” Cooper, 387 Wis. 2d 439, ¶29 (quoting Cullen v.
Pinholster, 563 U.S. 170, 189 (2011)). A self-serving statement that he would
have gone to trial is insufficient to satisfy the prejudice prong. See Bentley, 201
Wis. 2d at 316. A defendant must identify facts to support his claim that but for
the deficient conduct, he would have insisted on going to trial. Id. For Jackson,
that means he must show that had additional communication occurred, he would
have rejected the plea offer.

¶44 To succeed on the prejudice prong, Jackson must assert specific facts
to show how more communication or an additional meeting would have made a
difference in his decision to proceed to trial rather than accept the State’s plea
offer. Jackson, however, fails to submit anything at all. He has not alleged any
specific facts—such as the substance of what those communications or meetings
may have entailed—that establish Strickland prejudice, and he has not provided
any facts to show there is a reasonable probability he would have made a different
choice had trial counsel met or communicated with him more frequently. He does
not allege that if trial counsel had met with him as instructed by the circuit court
that the content of that meeting would have been any different than the content of
the meeting on November 1. Jackson also fails to provide any specific facts
asserting how more communication or additional client meetings would have
made trial counsel better prepared to try his case, and he likewise does not tell us
what he or trial counsel needed to talk about that had not already been covered.
Simply put, it is insufficient to say only that counsel’s lack of communication or
failure to meet more often prejudiced him, and absent greater specificity, we

24
No. 2019AP2383-CR

cannot conclude that limited communication or failure to meet before trial caused
Jackson prejudice.

¶45 There is also nothing in this record to support Jackson’s contention
that he had to take the plea offer because trial counsel was not prepared to go to
trial. To the contrary, the postconviction court addressed trial counsel’s
preparedness and found that trial counsel was prepared to go to trial. It said:

 “The case had been prepared to the verge of trial previously. All of the
motion practice had been attended to. I cannot point to a particular
harmful consequence of [trial counsel]’s failure.”

 Jackson’s “linkage” between “lack of communication [and] a lack of
preparation” “is not altogether apparent.” “Contact and communication,
after a certain point, are not essential to trial preparation.”

 “In the course of their limited contacts, [Jackson] had communicated his
goals for the representation to [trial counsel]. He wanted to beat the
case, which [trial counsel] understood to mean going to trial. At that
point it was [trial counsel’s] duty to pursue those goals. The choice of
strategy was up to the attorney.” (Internal citation omitted.)

The postconviction court then discussed trial counsel’s obligations to prepare for
the case, which included investigation, developing a trial strategy, and obtaining
information to attack the credibility of Webster and Henderson, and the
postconviction court found trial counsel had properly engaged in them all. Based
on all of this, the postconviction court found that trial counsel was prepared and
that Jackson failed to “identify—[n]either in his pleadings nor at the hearing—any
piece of evidence or any witness that [trial counsel] was unaware of or not

25
No. 2019AP2383-CR

prepared to deal with. [Trial counsel] reported ready for trial and stated that he
was prepared. I have no basis in what was presented at the hearing to discredit his
claim of being prepared.” The postconviction court also found trial counsel
credible and Jackson not credible. Jackson makes no attempt to challenge any of
the postconviction court’s findings as clearly erroneous.

¶46 Instead, Jackson alleged in his postconviction motion only
that: (1) he “maintains his innocence” to the second-degree reckless homicide
charge despite pleading no contest; and (2) the facts show that Henderson and
Webster were “the two suspects involved in the shooting.” In support
of his second allegation, Jackson identified three pieces of
evidence: (1) “Mr. Henderson’s fingerprint was found at the crime scene[;]”
(2) Carter’s “DNA was found on Mr. Henderson’s clothes[;]” and (3) “[t]he eye
witness identifies suspects as Mr. Henderson and Mr. Webster as seen in the
surveillance video and as arrested later that day.”22

¶47 These facts are insufficient to establish prejudice, particularly on the
basis of a lack of communication or meeting with trial counsel. Had Jackson gone
to trial, he would have been facing the charges of felony murder as a party to a
crime and felon in possession of a firearm as a party to a crime, not second-degree
reckless homicide. Thus, Jackson’s claimed innocence to second-degree reckless
homicide is irrelevant. All the State would have had to prove to a jury was that
Jackson was a party to the crime to the felony murder. See WIS. STAT. §§ 940.03,
939.05. The State did not have to prove Jackson actually shot the victim or that he

22
The witness described the appearance and apparel of the two individuals who
approached Carter but did not identify the suspects by name.

26
No. 2019AP2383-CR

was one of the two men the eyewitness identified. Jackson admitted to being
involved in the incident as Henderson’s and Webster’s lookout, and the circuit
court ruled this statement from his confession was admissible. He was also seen
with Henderson and Webster on surveillance film later that night, and Henderson
and Webster were testifying against him. Trial counsel testified at the Machner
hearing that Jackson decided to take the State’s plea offer because of the
“[s]trength of the State’s case.”

¶48 Moreover, even if trial counsel’s communication with Jackson was
deficient, Jackson admitted at the Machner hearing that prior counsel discussed
the evidence and discovery with him and that prior counsel had also provided him
with copies of the discovery, which included the police reports, witness
statements, and co-defendant statements. He therefore knew—regardless of what
trial counsel communicated to him—who was purportedly involved in Carter’s
death, what witnesses had described, and how Henderson and Webster might
testify against him at trial. Trial counsel’s limited communication prior to the trial
date also does not negate the communication that occurred between trial counsel
and Jackson in meetings on and before the scheduled trial date, which according to
trial counsel, included discussing the facts of the case, potential witnesses,
Henderson’s and Webster’s statements, and the overall strength of the State’s case
as to the charges Jackson would have faced had he proceeded to trial.

¶49 Finally, the plea offer allowed Jackson to plead to a single count on
a lesser charge and resolve both this case and his separate pending drug case.
Jackson was facing a significant period of incarceration if convicted on the
original charges at trial, and he also would have ultimately faced significant
exposure for multiple felony drug counts in the unrelated drug case where the
State captured the drug transactions on videotape. However, by accepting the

27
No. 2019AP2383-CR

State’s plea offer, Jackson substantially reduced his exposure because the State
agreed to dismiss and read in not only the felon in possession PTAC charge in this
case, but also all of the felony drug charges in the other pending matter. As the
postconviction court noted, this “reduced Mister Jackson’s [sentence] exposure by
ten years. The dismissal of the Felon in Possession of a Firearm charge reduced
his exposure by another 14 years. The dismissal of the three counts of Delivery of
Cocaine as a Repeat Drug Offender in a separate pending case reduced his
exposure by another 42 years.”

¶50 Based on the foregoing, we conclude Jackson failed to allege
specific facts that would support his assertion that he would have proceeded to
trial but for trial counsel’s limited communication and failure to meet as requested
by the circuit court. He neither provides us with any specific content he wanted to
cover in additional communications or another meeting nor any substantive
material that he did not have the chance to discuss with his trial counsel that
rendered trial counsel unprepared to go to trial. He does not challenge the
postconviction court’s findings that trial counsel was prepared to go to trial had he
decided to reject the plea offer, and the record supports the postconviction court’s
findings to that effect. This record therefore demonstrates there is no reasonable
probability that Jackson would have elected to proceed to trial if trial counsel had
more communication with Jackson or if the two had met another time before
November 1. Because Jackson cannot establish he was prejudiced by trial

28
No. 2019AP2383-CR

counsel’s failure to communicate or meet with him more often, his ineffective
assistance of counsel claim fails. 23

B. Withdrawal of Trial Counsel

¶51 Jackson next argues he should be allowed to withdraw his no contest
plea because the circuit court should have granted his request asking to replace
trial counsel. We disagree.

23
We reiterate that the issues presented to the postconviction court did not encompass
the issues the Dissent has independently identified. Moreover, on appeal, Jackson abandoned all
ineffective assistance claims he actually did make in his postconviction motion except for the one
addressed in the majority opinion: That “Jackson was denied effective assistance of counsel
when Jackson’s trial counsel failed to confer with Jackson prior to Jackson’s trial.”
(Capitalization edited for clarity.) His arguments are limited to his contention that he was forced
to accept the plea because trial counsel was unprepared, which we reject. The Dissent has
identified a new issue—that the plea to second-degree reckless homicide without the PTAC is the
result of the ineffectiveness of his trial counsel. But, Jackson does not make that argument. He
simply contended his lawyer was not prepared.

Because it is not this court’s role to act as an advocate, we do not address the issues
Jackson did not raise in the circuit court, and we likewise do not address the issues Jackson chose
not to appeal. See Tina B. v. Richard H., 2014 WI App 123, ¶42, 359 Wis. 2d 204, 857 N.W.2d
432 (an appellate court “will not act as an advocate” by “searching the record for evidence that
might support [an appellant’s] argument”); State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633
(Ct. App. 1992) (“We cannot serve as both advocate and judge.”); State v. Dowdy, 2012 WI 12,
¶4, 338 Wis. 2d 565, 808 N.W.2d 691 (an issue not raised in the circuit court will not be
considered for the first time on appeal); A.O. Smith Corp., 222 Wis. 2d at 491. We also decline
to act as the finder of fact by drawing conclusions about the credibility of witnesses, such as
finding that Henderson’s testimony is not credible and that Jackson’s is. See Jezeski, 316 Wis. 2d
178, ¶8.

The Dissent attempts to justify its advocacy by relying on United States v. Sineneng-
Smith, 140 S. Ct. 1575 (2020), despite the fact that in Sineneng-Smith, the Court reversed the
Ninth Circuit Court of Appeals for “depart[ing] so drastically from the principle of party
presentation.” Id. at 1578. The Court unanimously emphasized that courts are the “neutral
arbiter[s] of matters the parties present.” Id. at 1579 (citation omitted). The Court acknowledged
that there may be an extraordinary circumstance when a court may appropriately take a “modest
initiating role” particularly when necessary “to protect a pro se litigant’s rights.” Id. (citation
omitted). “[O]ur system ‘is designed around the premise that [parties represented by competent
counsel] know what is best for them, and are responsible for advancing the facts and argument
entitling them to relief.’” Id. (alteration in original) (citations omitted). The Dissent’s advocacy
here was neither modest nor was it done to protect a pro se litigant.

29
No. 2019AP2383-CR

¶52 Whether to grant a party’s request for appointment of new counsel is
a matter within the circuit court’s discretion. Lomax, 146 Wis. 2d at 359. “A
discretionary determination ‘must be the product of a rational mental process by
which the facts of record and law relied upon are stated and are considered
together for the purpose of achieving a reasoned and reasonable determination.’”
Id. (citation omitted). In determining whether a circuit court erroneously
exercised its discretion in denying a motion for substitution of counsel, we
consider multiple factors, including: “(1) the adequacy of the court’s inquiry into
the defendant’s complaint; (2) the timeliness of the motion; and (3) whether the
alleged conflict between the defendant and the attorney was so great that it likely
resulted in a total lack of communication that prevented an adequate defense and
frustrated a fair presentation of the case.” Id. The weight given to each factor
depends on the circumstances. Jones, 326 Wis. 2d 380, ¶30.

¶53 While a circuit court “is required to inquire into the defendant’s
complaint[,]” a full inquiry into the defendant’s reasons for requesting the
substitution is not always required. Lomax, 146 Wis. 2d at 361. For example, a
full inquiry may be unnecessary where “a defendant repeatedly makes such
requests without any further evidence of the attorney’s incompetency or
conflict[.]” Id. Here, the circuit court’s inquiry was somewhat cursory. However,
Jackson had repeatedly requested new counsel throughout the pendency of his
case and trial counsel was the fourth attorney appointed to represent him in this
proceeding. Additionally, the circuit court appropriately explained that trial
counsel was not required to file motions simply because Jackson wanted a motion
filed, and aside from general complaints about a lack of communication, Jackson
failed to establish trial counsel was incompetent or that there was an actual

30
No. 2019AP2383-CR

conflict. Accordingly, the circuit court’s inquiry was adequate under the
circumstances.

¶54 The circuit court also appropriately considered the timeliness of
Jackson’s motion. Jackson filed a pro se motion on September 20, 2016,
requesting new counsel. In his motion, Jackson asserted trial counsel had “failed
to[:]” (1) “promptly comply” with his requests for information; (2) “act with
reasonable diligence and promptness in representing” him; and (3) maintain an
attorney-client relationship. Jackson also noted a pending grievance he had filed
against trial counsel. The circuit court considered Jackson’s written motion and
additional statements he made at the final pretrial hearing on October 17, 2016. At
that time, the scheduled trial date was just two weeks away, and Jackson’s trial
had already been rescheduled multiple times. In light of Jackson’s repeated
requests to have his three prior attorneys replaced—all of which in some way
referenced a purported breakdown in communication and Jackson’s frustrations
that his attorneys were not filing the motions he wanted to pursue—the circuit
court reasonably concluded Jackson’s request was an attempt to further delay his
trial.

¶55 Finally, the circuit court gave Jackson an opportunity to explain why
he wanted trial counsel replaced. Jackson vaguely explained that trial counsel
“doesn’t keep in contact with me[,]” had not “filed … motions” Jackson wanted
him to pursue, “hasn’t been properly representing me at all[,]” and “hasn’t done
anything for me.” In denying Jackson’s request, the circuit court noted the
multiple times Jackson’s trial had been rescheduled.

31
No. 2019AP2383-CR

¶56 Having reviewed the circuit court’s decision in light of the Lomax
factors, we conclude the circuit court did not erroneously exercise its discretion in
denying Jackson’s motion to replace trial counsel.

C. Interests of Justice

¶57 Finally, Jackson asserts he is entitled to plea withdrawal, or
alternatively, resentencing, to correct a miscarriage of justice and violation of his
due process rights. We again disagree.

¶58 “The court of appeals has the discretionary power to reverse a
conviction in the interest of justice.” State v. Avery, 2013 WI 13, ¶23, 345
Wis. 2d 407, 826 N.W.2d 60. We may order a new trial under WIS. STAT.
§ 752.35 (2019-20) “if it appears from the record that the real controversy has not
been fully tried” or “it is probable that justice has for any reason miscarried.” We
exercise this discretionary reversal power only in exceptional cases, see State v.
Kucharski, 2015 WI 64, ¶23, 363 Wis. 2d 658, 866 N.W.2d 697, and we exercise
this power “sparingly and with great caution[,]” State v. Williams, 2006 WI App
212, ¶36, 296 Wis. 2d 834, 723 N.W.2d 719.

¶59 Jackson does little more than repeat the same arguments we have
already rejected in asserting this court should take the extraordinary step of
allowing him to withdraw his plea or to remand for resentencing in the interests of
justice. As we have already explained, Jackson did not establish ineffective
assistance of counsel, and the circuit court did not err in not allowing trial counsel
to withdraw prior to the trial date. And, despite asserting due process violations,
Jackson has not developed any argument as to what additional due process
violations he purportedly suffered aside from the aforementioned arguments we
have already rejected. To the extent we have already rejected those claims, we

32
No. 2019AP2383-CR

need not repeat our reasoning here, and to the extent Jackson has not developed
additional arguments as to plea withdrawal in the interests of justice, we do not
address his claim further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d
633 (Ct. App. 1992) (appellate courts may decline to address undeveloped and
inadequately briefed issues).

¶60 As to his assertion he is entitled to resentencing in the interests of
justice, Jackson does little more than complain that he was sentenced more harshly
than his co-actors. While he broadly asserts the circuit court erred by imposing a
lengthier sentence than his co-actors received, he has otherwise failed to develop
or adequately brief this claim and we therefore will not address it. See id.

III. CONCLUSION

¶61 In sum, Jackson failed to establish he received ineffective assistance.
He therefore is not entitled to withdraw his plea, as he has failed to establish a
manifest injustice. We also conclude the circuit court did not erroneously exercise
its discretion in denying Jackson’s pretrial request to have trial counsel replaced,
and we are not otherwise convinced this case warrants the exercise of our
discretionary reversal authority.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

33
No. 2019AP2383-CR(D)

¶62 REILLY, J. (dissenting). Daimon Von Jackson, Jr. was coerced into
becoming the “shooter” of Maurice Carter as a result of:

1. the constitutionally ineffective representation of Attorney Scott F.
Anderson;

2. the State’s breach of its pretrial offer; and

3. the court’s defective plea colloquy.

¶63 A “reasonably competent attorney”1 would have corrected the circuit
court at both the final pretrial hearing and the trial/plea date that Jackson was not
facing forty-six years in prison on an armed robbery charge if he went to trial. A
reasonably competent attorney would have challenged the State’s breach of its
plea offer. A reasonably competent attorney would have understood that a
second-degree reckless homicide charge is materially different from a charge of
second-degree reckless homicide as a party to the crime. A reasonably competent
attorney would have provided his client with a pretrial offer and discussed the
offer with his client prior to the day of trial. A reasonably competent attorney
would have met with and prepared both his client and witnesses prior to the trial
date. A reasonably competent attorney would have procured, produced, and
argued evidence that Jackson was not the “shooter” but was blocks away when
Bobby Henderson shot Carter. I respectfully dissent and would grant Jackson’s

1
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
No. 2019AP2383-CR(D)

request to withdraw his plea on the grounds that the plea hearing was defective,
that the State’s breach of its plea offer was prejudicial, and that Anderson’s
complete abandonment of Jackson in all phases of his representation was
prejudicial.

¶64 I begin by relating the objective facts, which show that Jackson was
the lookout rather than the shooter. I then show Anderson’s deficient performance
by examining solely the two-week period between Jackson’s final pretrial
(October 17, 2016) and his trial date (November 1, 2016). Next, I show the
State’s breach of its pretrial plea offer (unobjected to by Anderson), and I
conclude by examining the circuit court’s defective plea colloquy (also unobjected
to by Anderson). The effect of all of the above resulted in prejudice to Jackson:
he became the “shooter” rather than the lookout.

The Murder of Maurice Carter

¶65 Carter was shot and killed the evening of December 11, 2014, by
two men. Tauries Murry was an eyewitness to the shooting. Murry told police
that he and Carter were outside of 1013 Grand Avenue when two black males
approached. Murry described “one as a shorter fat, caramel-skinned black male
wearing a light grey hoodie and grey sweatpants” and the other as “taller, dark
skinned, wearing a black sweatshirt and black hat.” The two men ran to Carter, a
“scuffle” occurred, Murry heard a gunshot, Carter fell to the ground, and the two
men went through Carter’s pockets. The two men fled the scene when Murry
drove “his vehicle at a high rate of speed toward the two suspects in an attempt to
get them away from his friend.”

¶66 An ammunition magazine recovered at the scene had Henderson’s
fingerprints on it. Police picked up Henderson the next morning and testing of

2
No. 2019AP2383-CR(D)

Henderson’s clothing revealed Carter’s DNA on them. Henderson told police a
story (which police used in the criminal complaint) that he and Jackson were the
two who were going to rob Carter, but when they got there, he went to Murry’s car
and Jackson alone approached Carter. Henderson told police that Carter and
Jackson began scuffling, and he then heard two gunshots. Henderson claimed he
ran away by himself and met up with Travenn Webster and Jackson back at the
get-away car. Surveillance video obtained by police from Potawatomi Casino
showed Henderson, Webster, and Jackson at Potawatomi five hours after the
shooting. Henderson was wearing all black and a black hat, Webster was wearing
a light grey hoodie and grey sweatpants, and Jackson was dressed in all white.

¶67 Jackson was picked up and gave a statement to police in which he
admitted that he was part of the robbery plan but that he was the “lookout” and
was waiting at the car when the shooting occurred. Jackson claimed he never
intended Carter to be harmed. Jackson’s version of events was consistent up to
and through his sentencing.

¶68 If we examine the objective facts and the eyewitness statement of
Murry, we know:

1. Henderson’s fingerprints were on the gun magazine;

2. Carter’s DNA was on Henderson’s clothing;

3. The Potawatomi surveillance video shows Henderson and Webster
dressed just as Murry described the two men who shot Carter.

¶69 If we examine the statement Henderson gave police, which police
used in the criminal complaint, we observe that it is inconsistent with the
eyewitness’s statement, which placed Henderson with Webster when Carter was

3
No. 2019AP2383-CR(D)

shot. Henderson’s story never puts him in contact with Carter, which is
inconsistent with Carter’s DNA being on Henderson’s clothing. The eyewitness
stated the two men in black and grey rifled through Carter’s pockets and ran away
together. A man dressed in white was never placed at the scene of Carter’s
murder, and police produced no objective evidence that Jackson was at the scene
of Carter’s murder.

Deficient Performance

¶70 A defendant who seeks to withdraw his or her plea after sentencing
must establish by clear and convincing evidence that plea withdrawal is necessary
to correct a manifest injustice. State v. Dillard, 2014 WI 123, ¶36, 358 Wis. 2d
543, 859 N.W.2d 44. “A manifest injustice occurs when there are serious
questions affecting the fundamental integrity of the plea which rendered it
unknowing, involuntary, and unintelligently entered.” State v. Denk, 2008 WI
130, ¶71, 315 Wis. 2d 5, 758 N.W.2d 775. There are two ways for a defendant to
establish that his plea was unknowing, involuntary, or unintelligent. One way is
for the defendant to allege that factors extrinsic to the plea colloquy, such as trial
counsel’s ineffective assistance, rendered a defendant’s plea infirm. State v.
Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996).

¶71 To prove ineffective assistance of counsel a defendant must prove
that (1) counsel performed deficiently and (2) the defendant suffered prejudice as a
result of the deficient performance. State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d
571, 665 N.W.2d 305 (citing Strickland, 466 U.S. at 687). Deficient performance
occurs if counsel’s representation falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. The right to effective assistance of
counsel extends to the plea bargaining process as it is a “critical” stage in the

4
No. 2019AP2383-CR(D)

criminal justice system. See Missouri v. Frye, 566 U.S. 134, 144 (2012); Lafler v.
Cooper, 566 U.S. 156, 162 (2012); State v. Frey, 2012 WI 99, ¶¶57-60, 343
Wis. 2d 358, 817 N.W.2d 436.

¶72 Remarkably, the Majority does not unequivocally conclude that
Anderson’s representation was deficient; the Majority “assume[s]” that only his
“failure to communicate constituted deficient performance.” Majority, ¶¶40-42.
Remarkable in many ways. Remarkable as the circuit court found: “I cannot
imagine a situation where an attorney only meeting with the client twice over the
seven months leading up to the day of a murder trial is not deficient.” Remarkable
as our supreme court suspended Anderson’s license to practice law and assessed
costs of over $19,000 against him for his deficient/unprofessional representation
of Jackson in this case.2 Office of Lawyer Regulation v. Anderson, 2020 WI 82,
¶1, 394 Wis. 2d 190, 950 N.W.2d 191 (hereinafter Anderson). Remarkable as
Anderson failed to prepare for trial by not meeting with Jackson (even when
ordered to do so by the court) before trial. Remarkable as Anderson did not know
2
See Office of Lawyer Regulation v. Anderson, 2020 WI 82, ¶¶3-17, 394 Wis. 2d 190,
950 N.W.2d 191 (hereinafter Anderson), for additional discussion of Anderson’s representation
of Jackson. See also Sisson v. Hansen Storage Co., 2008 WI App 111, ¶11, 313 Wis. 2d 411,
756 N.W.2d 667 (“‘Judicial notice may be taken at any stage of the proceeding,’ and this means
that an appellate court may take judicial notice when that is appropriate.” (citations omitted)).

Our supreme court upheld the referee’s findings of fact and conclusions of law that
Anderson (1) failed to reasonably consult with Jackson about the means by which Jackson’s
defense objectives were to be accomplished (SCR 20:1.4(a)(2)), (2) failed to keep Jackson
reasonably informed about the status of his action (SCR 20:1.4(a)(3)), and (3) failed to promptly
comply with reasonable requests made by Jackson for information about his case (SCR
20:1.4(a)(4)). Anderson, 394 Wis. 2d 190, ¶¶18, 37, 44.

I acknowledge our supreme court’s discussion in State v. Cooper, 2019 WI 73, ¶¶21-22,
387 Wis. 2d 439, 929 N.W.2d 192, where the court explained that a violation of the rules of
professional conduct does not necessarily mean that there has been ineffective assistance of
counsel. Given the facts of this case in which Anderson abandoned Jackson, there is ineffective
assistance of counsel along with professional misconduct.

5
No. 2019AP2383-CR(D)

that the armed robbery charge had been dismissed ten months prior to the final
pretrial date. See Majority, ¶8. Remarkable as Anderson did not know that the
State changed its plea offer on the trial date to remove the “party to a crime”
status. Remarkable as Anderson did not challenge the State’s breach of its plea
offer. And remarkable in that Anderson allowed the court to use the facts in the
criminal complaint (Henderson’s account) as the basis for Jackson’s plea when he
knew that Jackson had never admitted to being the shooter. Anderson was not
only deficient, he was nonexistent to Jackson.

Breach of Pretrial Offer

¶73 On the morning of October 17, 2016, the State, in an e-mail to
Anderson, offered to amend the charge of felony murder to “party to crime of
[second-degree] reckless homicide.” In return for Jackson’s plea, the State would
dismiss and read in all other charges (including drug charges in a separate case)
and would recommend unspecified prison. The offer stated that it would remain
“open until the Friday before the trial” (October 28, 2016). Later that day, the
State told Anderson and the court that it would “keep the offer open until the day
of the trial” (November 1, 2016). Anderson admitted that he did not discuss the
offer with the State or Jackson.

¶74 At the final pretrial later in the day on October 17, 2016, Jackson
asked that the circuit court remove Anderson as his lawyer. The court refused: “I
will not allow Mr. Anderson to withdraw, whether it be on your request or anyone
else’s. So, Mr. Anderson, I ask that you meet with [Jackson] and that you also be
prepared to proceed on November 1st. Again it is the number one trial.” The
court also instructed Anderson to submit a witness list by Friday, October 21,
2016, with the dates of birth of the witnesses. Anderson did not do so. The court

6
No. 2019AP2383-CR(D)

had previously ordered Anderson to file his proposed jury instructions by the
October 17, 2016 final pretrial. Anderson did not do so, and the court made no
comment on Anderson’s failure to do so. Anderson did not prepare or file any
proposed jury instructions prior to the trial date.

¶75 At the October 17 pretrial, the circuit court asked the State what its
last pretrial offer was. The State responded that it had sent Anderson an offer via
e-mail, but it did not have a copy in the courtroom and it “would make a record of
that on the day of trial.” The court asked the State if its pretrial offer was being
held open for any period of time. The State responded, “Given that there’s
apparently some conversations that need to take place, I will keep the offer open
until the day of trial.” (Emphasis added.) As noted above, Anderson did not
discuss the State’s offer with Jackson, and the record is unclear as to whether he
ever notified Jackson of the offer.3 Anderson made no record with the court on
October 17 or on November 1 that the State’s pretrial offer was for a plea to
second-degree reckless homicide as party to a crime.

¶76 In Dillard, 358 Wis. 2d 543, ¶90, our supreme court held that “[a]
defendant’s decision whether to go to trial or plead no contest (or guilty) is
generally the most important decision to be made in a criminal case. A defendant

3
Anderson testified that he “believe[d]” the offer was “conveyed” to Jackson: “My note
showed a letter to him 10-18-16. But I don’t know whether that was in that letter or not.” The
purported letter does not appear to be in the record. In Anderson, our supreme court explained
that “[o]n October 18, 2016, Attorney Anderson forwarded D.J. a plea offer which expired on
October 28, 2016. Attorney Anderson promised to meet with D.J. ‘to discuss it and all other
matters.’ Attorney Anderson did not communicate or meet with D.J. between October 18 and
October 28, 2016.” Anderson, 394 Wis. 2d 190, ¶14. There is no proof of the letter in this
record, and, further, this series of events makes no sense as the letter providing the October 28
deadline was supposedly sent on October 18, but Anderson knew on October 17 that the offer
would be open until the day of trial (November 1).

7
No. 2019AP2383-CR(D)

should have the benefit of an attorney’s advice on this crucial decision.” Defense
counsel has a duty to communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused. Frye, 566 U.S.
at 145. When defense counsel allows an offer to expire without advising the
defendant or allowing him to consider it, defense counsel does not render the
effective assistance the Constitution requires. See id. The question then becomes
one of prejudice, and Frye held that “[t]o show prejudice from ineffective
assistance of counsel where a plea offer has lapsed or been rejected because of
counsel’s deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had they been afforded
effective assistance of counsel.” Id. at 147. We have a clear showing of prejudice
as Jackson (and Anderson) prepared the plea questionnaire on November 1 with
the understanding that Jackson was pleading to second-degree reckless homicide
as party to a crime.

¶77 Anderson never made the circuit court aware at the plea hearing that
the state’s pretrial offer was for a plea to second-degree reckless homicide as party
to a crime. The Majority acknowledges that the State agreed to hold its offer open
until the day of trial but then inexplicably finds neither deficient performance nor
prejudice when the State changed the offer that it had agreed to keep open. See
Majority, ¶11. Anderson was ordered by the court on October 17 to meet with
Jackson prior to the trial. Anderson failed to do so. A reasonably competent
attorney would meet with his client before going to trial on a murder charge
(especially when ordered to do so by the court) and especially where an expiring
plea offer was on the table. Anderson admitted at the Machner4 hearing that he
4
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

8
No. 2019AP2383-CR(D)

“should have met with” Jackson. Similar to Frye, Anderson received the written,
formal plea offer from the State by e-mail, and he failed to properly communicate
with Jackson regarding the offer.

Defective Plea Colloquy

¶78 The second way for a defendant to establish that his plea was
unknowing, involuntary, or unintelligent is to assert that the plea colloquy was
defective on its face and that he or she did not otherwise know the information that
should have been provided.5 State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986). Under Bangert, the court has an obligation to address the defendant
personally when he or she enters a guilty plea and to undertake a colloquy to
ensure the defendant understands the nature of the charge, the constitutional rights
he or she is giving up by pleading, and the potential punishment for the crime. See
State v. Brown, 2006 WI 100, ¶¶33-35, 293 Wis. 2d 594, 716 N.W.2d 906; see
also WIS. STAT. § 971.08. “An understanding of the nature of the charge must
include an awareness of the essential elements of the crime.” Bangert, 131
Wis. 2d at 267.

¶79 The defects in Jackson’s plea hearing are palpable. While the circuit
court did ask Jackson if he understood the charge and the elements of the charge

5
Where the defendant alleges that the procedure set forth in WIS. STAT. § 971.08 was
not followed or that the court did not fulfill its other mandated duties at the plea hearing, he or she
may move for plea withdrawal pursuant to State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12
(1986). See State v. Brown, 2006 WI 100, ¶¶33-35, 293 Wis. 2d 594, 716 N.W.2d 906. The
initial burden falls on the defendant to make a prima facie showing that the plea was accepted
without conformity with mandatory procedures. Bangert, 131 Wis. 2d at 274; Brown, 293
Wis. 2d 594, ¶36. The defendant must also allege that he or she did not know or understand the
information. Bangert, 131 Wis. 2d at 274. Once the defendant makes these showings, the
burden shifts to the State to prove by clear and convincing evidence that the defendant’s plea was
nevertheless knowingly, voluntarily, and intelligently entered. Id.

9
No. 2019AP2383-CR(D)

of second-degree reckless homicide (Jackson said he did), the problem is that
Jackson, at this point in the plea hearing, thought he was pleading to second-
degree reckless homicide as a party to the crime. After the court inquired about
Jackson’s understanding of the charge, it noted, “As I look at the plea
questionnaire, the plea questionnaire has party to the crime”; however, the court
then deflected the difference between a charge of second-degree reckless homicide
versus a charge of second-degree reckless homicide as a party to the crime by
stating, “The elements are the same.” Anderson admitted that he had
misunderstood the charge: “I wasn’t sure regarding the amended information.”
The court accepted Jackson’s plea without inquiring whether Jackson understood
the difference between second-degree reckless homicide and second-degree
reckless homicide as a party to the crime. The prosecutor, perhaps uncomfortable
with the court’s acceptance of Jackson’s plea to the straight-up charge of second-
degree reckless homicide, asked the court to inquire of “Mr. Jackson whether or
not he needed more time to speak to Mr. Anderson regarding the change of party
to the crime versus non-party to the crime.” The court failed to review the
essential difference with Jackson as to what it meant to plea to a straight-up charge
of second-degree reckless homicide without the party to crime status, i.e., Jackson
was now the shooter.

¶80 The court also erred during the plea colloquy when it said that the
elements of second-degree reckless homicide “are the same” as the elements the
State would need to prove if it charged Jackson with second-degree reckless
homicide as a party to the crime. As stated in Bangert, a defendant must be aware
of the “essential elements” of the crime being pled to. Id. at 267. The essential
elements between a charge of straight-up second-degree reckless homicide and
second-degree reckless homicide as a party to the crime are not the same. In the

10
No. 2019AP2383-CR(D)

latter, the State (having an absence of proof that Jackson was at the scene of
Carter’s shooting) would need to prove that Jackson “[i]ntentionally aid[ed] and
abet[ed] the commission” of the crime or was “a party to a conspiracy with
another to commit” the crime. See WIS. STAT. § 939.05(2)(a)-(c); WIS JI—
CRIMINAL 400, 406.

¶81 The “essential” difference is not in what penalty Jackson faced; the
“essential” difference is that in being charged as a party to the crime, Jackson
could show at sentencing what he all along acknowledged—that he was part of the
plan to rob Carter at gunpoint but maintain his assertion that he had no intent to
physically harm Carter. See State v. Cecchini, 124 Wis. 2d 200, 212-14, 368
N.W.2d 830 (1985), overruled on other grounds by State v. Bangert, 131 Wis. 2d
246, 389 N.W.2d 12 (1986) (“It is evident that a defendant cannot make a truly
voluntary or intelligent admission that he or she committed the offense charged
unless he or she is aware of its essential elements and their relationship to the facts
of the particular case; the defendant must be given ‘notice of what he is being
asked to admit.’” (citation omitted)). By requiring the plea to be to a straight-up
charge of second-degree reckless homicide without the party to a crime status,
Jackson became the cold-blooded killer of Carter. For anyone to suggest that a
judge at sentencing would treat a cold-blooded killer the same as a “lookout” is
sorely lacking in the understanding of what a judge at sentencing is tasked with
doing.

¶82 Further, at the final pretrial, the circuit court told Jackson that if he
went to trial he would be facing three charges: felony murder, possession of a
firearm by a felon as a party to the crime, and armed robbery with use of force as a
party to the crime. The court explained, “So [Jackson], if you are convicted on all
three counts, you face 117 years in prison and $225,000 in fines.” The court erred

11
No. 2019AP2383-CR(D)

as the armed robbery charge had been dismissed nine months earlier on January 8,
2016.6 Neither Anderson nor the State7 corrected the court. Due to the silence of
Anderson and the State, Jackson approached his trial date with the understanding
that he was facing forty-six years in prison on the armed robbery charge if he went
to trial. Our supreme court held in Dillard, 358 Wis. 2d 543, ¶91, that trial
counsel performed deficiently when she failed to ascertain that the persistent
repeater enhancer was, as a matter of law, inapplicable to the defendant and when
she advised the defendant to enter the plea agreement based in large part on the
State’s offer to drop that enhancer.8 See also State v. Douglas, 2018 WI App 12,
¶11, 380 Wis. 2d 159, 908 N.W.2d 466 (plea involuntary where defendant “was
incorrectly informed that he faced a potential sentence of 100 years if convicted of
both first and second-degree sexual assault” despite the fact that legally, he could
not be convicted of both offenses).

¶83 The circuit court erred in telling Jackson that he faced forty-six years
on the armed robbery charge. Anderson likewise erred in not correcting the court

6
The State did not contest the dismissal of the armed robbery charge as it is an
underlying felony of the charge of felony murder. At the Machner hearing, the State asked
Anderson, “Mr. Anderson, do you recall, this may have been before your representation of
Mr. Jackson. The third count was actually dismissed while the case was pending before
Judge Gasiorkiewicz. Correct?” Anderson answered, “I don’t know.”
7
The prosecutor who was present on January 8, 2016, and had conceded to the armed
robbery charge being dismissed, was present in court on October 17, 2016. The prosecutor did
not correct the court.
8
In Dillard, our supreme court concluded that the defendant’s trial counsel was
constitutionally ineffective based on “trial counsel mistakenly advis[ing] the defendant he would
face a mandatory sentence of life in prison without the possibility of extended supervision if he
did not accept the plea agreement.” State v. Dillard, 2014 WI 123, ¶¶81-82, 91, 358 Wis. 2d 543,
859 N.W.2d 44. The defendant believed that he faced a persistent repeater enhancer on an armed
robbery charge, so he accepted the State’s offer, but after sentencing it became clear that the
persistent repeater enhancer could not be applied to the defendant. Id., ¶¶78-79.

12
No. 2019AP2383-CR(D)

that the armed robbery charge was not in play. The prosecutor erred, as an officer
of the court, in not correcting the court that the armed robbery charge had been
dismissed. Thus, Jackson was left to understand that the armed robbery charge
had been reinstated. Jackson’s plea was not knowing as he thought he faced an
additional forty-six years in prison if he went to trial.

Prejudice

¶84 It is well-established that to succeed on his ineffective assistance of
counsel claim, Jackson must show that Anderson’s deficient performance was
prejudicial. Strickland, 466 U.S. at 687. Counsel’s failure to provide accurate
information and advice to a defendant regarding his case in the context of a plea
agreement can create prejudice. See Frye, 566 U.S. at 148; Lafler, 566 U.S. at
168. In order to satisfy the prejudice prong of the Strickland test, the defendant
seeking to withdraw his or her plea must demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” See Lafler, 566 U.S. at 163 (quoting
Strickland, 466 U.S. at 694). I am more than satisfied that Anderson’s multiple
failures coupled with the breach of the plea offer by the State and the court’s error
in telling Jackson that the armed robbery charge was back in play all prejudiced
Jackson. Jackson became the “shooter” rather than the “lookout.”

¶85 The State’s October 17, 2016 offer was for Jackson to plead to
second-degree reckless homicide as party to a crime. We know that Jackson

13
No. 2019AP2383-CR(D)

would have accepted the State’s pretrial offer.9 Anderson admitted that Jackson
was “upset” and “frustrated” at his plea hearing. When the tables were turned on
Jackson on November 1, he was faced with pleading to second-degree reckless
homicide without the party to a crime status or going to trial (with the armed
robbery charge now back in play) with a lawyer who was unprepared and who had
subpoenaed no witnesses. Anderson abandoned Jackson when he told the circuit
court that it could use the criminal complaint “as a factual basis for the plea,” as
those facts consisted of Henderson saying that Jackson was the shooter. The court
stated that it had reviewed the criminal complaint and would use it as the factual
basis for the change of plea.

¶86 The circuit court explained in its postconviction decision that “[i]n
this case the record was explicit that [Jackson] was pleading as a principal rather
than an accomplice or conspirator.” Due to Anderson’s abandonment of Jackson,
Jackson became the “shooter.” When Jackson maintained his claim that he was
the lookout with both the PSI writer and the court at sentencing, he was not
“believed” by the court. The sentencing court stated, “I fully believe based on
everything that I have read that you were the shooter in this case or involved in

9
The State filed an amended information the morning of November 1, 2016, that
charged second-degree reckless homicide without the party to a crime status. The court addressed
Anderson during the later plea hearing: “As I look at the plea questionnaire, the plea
questionnaire has party to the crime. My understanding is that Mr. Von Jackson is not pleading
to Count 1 as a party to the crime, but is pleading to second degree reckless homicide as a
repeater with use of a dangerous weapon, is that correct?” The State responded, “Yes.”
Anderson stated, “I reviewed it as a party to the crime. I wasn’t sure regarding the amended
information.” (Emphasis added.) The court asked Anderson, “All right, do you need any
additional time then to talk to Mr. Von Jackson?” Anderson said, “No.” The court did not ask
Jackson if he needed more time or if he understood the significance of the “party to a crime”
status being removed. At the Machner hearing, Anderson admitted that he was “surprise[d]”
during the plea hearing that the charge was without the party to a crime status. Anderson testified
that the facts serving as the basis for Jackson’s guilty plea should have been as “a look-out” and
that “his role was not as the shooter.”

14
No. 2019AP2383-CR(D)

this shooting. Your lack of remorse, your lack of responsibility is telling.”
Jackson became the cold-blooded killer rather than what all the credible facts
support—that he was the lookout.10

¶87 Further, the extent of the prejudice to Jackson is evident in his co-
defendants’ sentences. Webster pled to robbery as party to a crime and received
ten years’ initial confinement and five years’ extended supervision. Henderson
pled to second-degree reckless homicide as party to a crime and received twelve
years’ initial confinement and eight years’ extended supervision. Jackson was
coerced into being the “shooter” and was sentenced to twenty years’ initial
confinement and ten years’ extended supervision.

Conclusion

¶88 Jackson is not an innocent man in Carter’s death and has never
claimed to be. Jackson should have been allowed to plea to and be sentenced for
what he did do: act as a lookout for his co-defendants in the armed robbery of
Carter. When we allow an accused to be abandoned by his lawyer; when we allow
the State to take advantage of that abandonment by breaching its plea offer; when
we allow a court to err in its understanding of the charges an accused is facing;
and when we allow a court to erroneously tell a defendant that “the elements are
the same” without explaining the “essential” differences between a straight-up
charge of second-degree reckless homicide versus a charge of second-degree

10
This is not a situation where the State’s case was ironclad. See Strickland, 466 U.S. at
696 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.”).

15
No. 2019AP2383-CR(D)

reckless homicide as a party to the crime, then we and the entire justice system
fail.11 I dissent.

11
The Majority suggests that it is improper to address all the obvious failings in this
case, as it requires us to take the position of an advocate: “Because it is not this court’s role to act
as an advocate, we do not address the issues Jackson did not raise in the circuit court, and we
likewise do not address the issues Jackson chose not to appeal.” Majority, ¶50 n.23. This
concept was recently addressed by the United States Supreme Court in United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579, 1582 (2020), where the Court held that the lower court
had deviated too far from the “principle of party presentation” when it decided a case based on
arguments not raised by the parties. At the same time, however, the Court explained that “[t]he
party presentation principle is supple, not ironclad. There are no doubt circumstances in which a
modest initiating role for a court is appropriate” and “a court is not hidebound by the precise
arguments of counsel.” Id. at 1579, 1581.

There is clearly deficient performance by trial counsel in this case, and if the Majority is
correct that we cannot address other failures—all related to the ineffective assistance of trial
counsel—based on postconviction counsel’s failure to brief the issues to this court, then
postconviction counsel was likewise ineffective. Under these circumstances, Jackson would have
been better off if his attorney had filed a no-merit report, as we would then be obligated to search
the record for any viable issues. The failures set forth above are clearly viable issues, and,
therefore, in the interest of justice, we should address those deficiencies rather than tell a
defendant that due to his or her lawyer’s deficiencies we cannot hear his or her claims or give
relief due to our procedural rules. The advancement of justice should override our desire for
“judicial economy.” In this case, we have deficient performance by the court, prosecutor, and
defense attorney. We have a prosecutor who breached his plea offer. We have a circuit court
judge who was unprepared for trial by thinking that the armed robbery charge was still in play.
We have a prosecutor who had a duty as an officer of the court to correct the court regarding the
armed robbery charge. And we have Anderson, who did nothing. The Majority excuses
everyone except the person who holds the constitutional right to a fair proceeding.

The Majority faults the use of Sineneng-Smith for support under these circumstances,
noting that “the Court reversed the Ninth Circuit Court of Appeals” for its “drastic[]” departure
from the arguments of the parties. Majority, ¶50 n.23. Jackson argues that he should be allowed
to withdraw his plea based on ineffective assistance of counsel, and my discussion does not
depart from that issue, let alone depart “drastically.” See Sineneng-Smith, 140 S. Ct. at 1578.
The Majority acknowledges and assumes that Anderson’s lack of communication with Jackson
was deficient performance. One of those failures was the failure to communicate the State’s
pretrial offer. A competent attorney would have done so. Further, the Majority suggests that “a
court may appropriately take a ‘modest initiating role’ particularly when necessary ‘to protect a
pro se litigant’s rights.’” Majority, ¶50 n.23. The Sineneng-Smith Court did not pronounce such
a bright-line rule, as the Court noted only that “[i]n criminal cases, departures from the party
presentation principle have usually occurred ‘to protect a pro se litigant’s rights’” and went on to
note that the “general rule” of the principle of party presentation applies when parties are
“represented by competent counsel.” Sineneng-Smith, 140 S. Ct. at 1578-79 (emphasis added;
citations omitted). As addressed above, Jackson was not “represented by competent counsel.”
(continued)

16
No. 2019AP2383-CR(D)

We claim that justice is blind, yet we deny justice when we deliberately blind ourselves
to the facts in the record when the claim on appeal is the constitutional ineffectiveness of counsel.
Does the record in this case, one the Majority is obligated to review, reflect a “manifest injustice”
based upon the ineffective assistance of counsel? See Dillard, 358 Wis. 2d 543, ¶36. Does this
record reflect serious questions “affecting the fundamental integrity of [Jackson’s] plea”? See
State v. Denk, 2008 WI 130, ¶71, 315 Wis. 2d 5, 758 N.W.2d 775. It does.

17