State v. Jeffrey P. Lepsch

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.
April 23, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2025AP1316 Cir. Ct. No. 2012CF691

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY P. LEPSCH,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Affirmed.

Before Blanchard, Nashold, and Taylor, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jeffrey P. Lepsch, pro se, appeals the circuit court’s
denial of his postconviction motion without a hearing. In his motion, Lepsch
No. 2025AP1316

asserted that the State elicited false and improper expert testimony from a witness
called by the State and that his postconviction counsel was ineffective in failing to
raise the ineffectiveness of trial counsel with regard to this issue. We conclude that
this postconviction motion was procedurally barred because Lepsch failed to
demonstrate that the issues raised in the motion were clearly stronger than those
presented in his earlier postconviction motion. Because the circuit court did not err
in denying the motion without a hearing, we affirm.

BACKGROUND

¶2 After a five-day jury trial in 2013, Lepsch was convicted of two counts
of first-degree intentional homicide, armed robbery with use of force, and
possession of a firearm by a felon. The homicide victims were discovered in a
photography store from which various camera equipment had been taken, much of
which police discovered at Lepsch’s residence. In Lepsch’s bedroom, Police found
six external flashes for attachment to a camera. At trial, the State posed questions
about these flashes to Investigator Anthony DeLap, who testified in pertinent part
as follows:

Q [W]hat pieces of camera equipment were
located [in Lepsch’s bedroom]?

A Some -- one, two, three, four, five, six
external flashes.

….

Q Did you indicate five of the very same
model?

A Correct.

Q Um, now, where does the external flash go, if
you can show to the jury where the external flash goes on the
camera?

2
No. 2025AP1316

A Ah, the external flash attaches to the top of
the camera.

Q How many of those can you fit on a camera?

A One.

Q You can only fit one of those on the camera?

A Correct.

Q You said that you’re somewhat of a camera
guy. How many external flashes do you need for the
camera?

A One.

¶3 This court affirmed the judgment of conviction and an order denying
a motion for postconviction relief in Lepsch’s direct appeal, State v. Lepsch,
No. 2014AP2813-CR, unpublished slip op. (Nov. 19, 2025). Lepsch then filed a
petition for review, and the supreme court granted review. Lepsch did not raise any
issue related to DeLap’s testimony in that appeal. In a published opinion, the
supreme court also affirmed the judgment and order, rejecting Lepsch’s arguments,
namely, that:

(1) Lepsch’s right to a trial by an impartial jury was violated
because certain of the jurors in his case were subjectively
and objectively biased; (2) Lepsch’s right to due process of
law was violated because of circumstances that created the
likelihood or appearance of bias and because of alleged
deficiencies in the circuit court’s investigation into and
mitigation of these circumstances; (3) Lepsch’s right to be
present at a critical stage of his proceedings, right to a public
trial, and right to a jury properly sworn to be impartial were
violated because the La Crosse County Clerk of Courts
administered the oath to the prospective jurors in Lepsch’s
case outside of Lepsch’s presence; and (4) Lepsch’s right to
receive the proper number of peremptory strikes, to full use
of those strikes, and to have biased jurors removed for cause
was violated by the circuit court.

3
No. 2025AP1316

State v. Lepsch, 2017 WI 27, ¶3, 374 Wis. 2d 98, 892 N.W.2d 682 (footnotes
omitted). All of these arguments were “raised via a claim of ineffective assistance
of counsel.” Id.

¶4 Lepsch filed another postconviction motion pursuant to WIS. STAT.
§ 974.06 in February 2025. He argued that trial counsel was ineffective in failing
to object to the testimony from DeLap reproduced above as improper expert
opinion, which Lepsch characterized as false, because Lepsch himself had “used
multiple external flashes with only one camera.” He also argued that postconviction
counsel was ineffective in failing to investigate Lepsch’s assertions with respect to
this issue.

¶5 The circuit court denied this motion without a hearing. It determined
that Lepsch did not demonstrate a sufficient reason for not asserting the claims
related to DeLap’s testimony in his earlier postconviction motion. Lepsch appeals.

DISCUSSION

¶6 The question on appeal is narrow: whether the allegations in Lepsch’s
postconviction motion were sufficient to require the circuit court to hold an
evidentiary hearing. See State v. Balliette, 2011 WI 79, ¶38, 336 Wis. 2d 358, 805
N.W.2d 334. A defendant is entitled to an evidentiary hearing if the postconviction
motion alleges “sufficient material facts—e.g., who, what, where, when, why, and
how—that, if true, would entitle [the defendant] to the relief [the defendant] seeks.”
State v. Allen, 2004 WI 106, ¶¶2, 23, 274 Wis. 2d 568, 682 N.W.2d 433. However,
absent a sufficient reason, a defendant is procedurally barred from raising claims in
a WIS. STAT. § 974.06 postconviction motion that could have been raised in a prior
postconviction motion or appeal. State v. Escalona-Naranjo, 185 Wis. 2d 168,
181-82, 185-86, 517 N.W.2d 157 (1994). The defendant must allege the “sufficient

4
No. 2025AP1316

reason” in the postconviction motion itself. State v. Romero-Georgana, 2014 WI
83, ¶30, 360 Wis. 2d 522, 849 N.W.2d 668.

¶7 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier motion
or on direct appeal.” Id., ¶36. Such a claim must be supported by alleging that
postconviction counsel was constitutionally ineffective, rendering deficient
performance that resulted in prejudice to the defendant, under Strickland v.
Washington, 466 U.S. 668 (1984). See Balliette, 336 Wis. 2d 358, ¶¶21-28. In a
case like this, in which the deficient performance of postconviction counsel is
alleged to be a failure to bring a claim of ineffective assistance of trial counsel, the
defendant must also allege that trial counsel’s performance was both deficient and
prejudicial. Romero-Georgana, 360 Wis. 2d 522, ¶56; State v. Ziebart, 2003 WI
App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369. In addition, the defendant must
show “that ‘a particular nonfrivolous issue was clearly stronger than issues that
[postconviction] counsel did present.’” Romero-Georgana, 360 Wis. 2d 522, ¶45
(emphasis in original; citations omitted).

¶8 Whether a WIS. STAT. § 974.06 motion alleges sufficient facts to
require a hearing and a sufficient reason for failing to raise claims earlier are
questions of law that this court independently reviews. Id., ¶30. We limit our
review to the allegations within the four corners of the motion. Id., ¶64. With this
background in mind, we turn to the specific allegations in Lepsch’s § 974.06
motion.

¶9 Assuming without deciding that Lepsch’s motion made sufficient
allegations of ineffective assistance from both trial and postconviction counsel, we
conclude that Lepsch failed to sufficiently allege that the issues related to the DeLap

5
No. 2025AP1316

testimony are clearly stronger than the claims presented in his earlier appeal. Lepsch
acknowledged the correct standard in his motion, but he did not meaningfully
compare the strength of his current claim with the claims actually raised by
postconviction counsel. He acknowledged that he considered the “issues
surrounding the lack of an impartial jury” in his initial appeal as “strong[],” and that
they “received review from multiple courts.” Indeed, the originally raised issues
were substantial enough to warrant review by our supreme court, which grants
review to only a small percentage of the cases that it could review. Lepsch stated
that he would “use[] these issues as the ‘benchmark’ when applying the ‘clearly
stronger’ standard to his current claims,” but he did not then apply the standard;
there is no analysis whatsoever of the relative strength of the “impartial jury” claims
as compared to the claims relating to DeLap’s testimony in Lepsch’s motion, only
the conclusory assertion that the current claims are clearly stronger.

¶10 Lepsch argues that his motion included the necessary comparison
because the originally asserted impartial jury claims related to the “vehicle” used
for the determination of guilt or innocence and, in supposed contrast, the current
claims regarding DeLap’s testimony, relate to “erroneous information” that reached
the jury. This is not enough. The motion included no explanation as to why the
claims Lepsch sought to assert after his original appeal had any better chance of
success than the claims in the original appeal.

¶11 We therefore affirm the circuit court’s denial of Lepsch’s
postconviction motion as procedurally barred under Escalona.

CONCLUSION

¶12 For these reasons, we affirm the order of the circuit court.

6
No. 2025AP1316

By the Court.—Order affirmed.

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

7