State v. Jesus Gonzalez

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.
August 30, 2022
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. 2021AP1496 Cir. Ct. No. 2010CF2323

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JESUS GONZALEZ,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MICHELLE ACKERMAN HAVAS, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1496

¶1 PER CURIAM. Jesus Gonzalez appeals the order denying his WIS.
STAT. § 974.06 (2019-20)1 motion for a new trial, entered following an evidentiary
hearing. Gonzalez argues that the circuit court erred in denying his motion
because his trial counsel rendered ineffective assistance when she advised him not
to testify at his trial. Gonzalez also argues that his first postconviction counsel
was ineffective for failing to raise the issue of trial counsel’s ineffectiveness
during his direct appeal. Upon review, we affirm.

BACKGROUND

¶2 We have previously discussed the facts of Gonzalez’s case in
State v. Gonzalez (Gonzalez I), No. 2015AP784-CR, unpublished slip op. (WI
App Mar. 8, 2016), and State v. Gonzalez (Gonzalez II), No. 2018AP257,
unpublished slip op. (WI App June 25, 2019), and accordingly, we need not repeat
the facts in detail here. It suffices to say that the State charged Gonzalez with
first-degree intentional homicide with use of a dangerous weapon and attempted
first-degree intentional homicide with use of a dangerous weapon. The charges
stemmed from the shootings of Danny John and J.C. John died as a result of the
shootings and J.C. was left paralyzed. At trial, Gonzalez argued that he shot the
victims in self-defense. See Gonzalez II, No. 2018AP257, ¶4. Gonzalez himself
did not testify. The trial court instructed the jury on self-defense, and the jury
ultimately found Gonzalez guilty of first-degree reckless homicide and first-degree

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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reckless injury, as lesser-included offenses. Id., ¶5.2 The trial court sentenced
Gonzalez to twenty years of initial confinement and five years of extended
supervision on the homicide count. On the reckless-injury count, the trial court
concurrently sentenced Gonzalez to five years of initial confinement and five
years of extended supervision.

¶3 Gonzalez, by postconviction counsel, filed a postconviction motion
for a new trial pursuant to WIS. STAT. § 809.30 (2017-18). The circuit court3
denied the motion. Gonzalez appealed, arguing trial court error in that the trial
court failed to follow the statutory procedure for striking an alternate juror and
permitted the jury to take notes during closing arguments. This court affirmed the
judgment of conviction. See Gonzalez I, No. 2015AP784-CR.

¶4 Gonzalez, pro se, then filed a WIS. STAT. § 974.06 motion seeking
an evidentiary hearing on the grounds of ineffective assistance of counsel. As
relevant to this appeal, Gonzalez argued that trial counsel was ineffective for
advising him not to testify at trial in support of his self-defense theory. He argued
that the motion was not procedurally barred because postconviction counsel was
ineffective for failing to raise the issue on direct appeal. The circuit court denied
the motion; however, this court remanded the matter for an evidentiary hearing on

2
The jury found Gonzalez guilty of first-degree reckless homicide and first-degree
reckless injury. Subsequently, the parties informed the circuit court that the jury had been
incorrectly instructed that first-degree reckless injury is a lesser included offense of attempted
first-degree intentional homicide. Pursuant to an agreement between the parties, the court
vacated the jury’s conviction for first-degree reckless injury, and Gonzalez pled no contest to a
charge of second-degree recklessly endangering safety. State v. Gonzalez (Gonzalez II),
No. 2018AP257, unpublished slip op. ¶5 (WI App June 25, 2019).
3
We refer to the court that presided over Gonzalez’s trial as the trial court, and the courts
that presided over Gonzalez’s postconviction motions as the circuit court.

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the limited allegations that Gonzalez’s trial counsel was ineffective for advising
him not to testify at trial, and that postconviction counsel was ineffective for not
raising that issue in his first appeal. See Gonzalez II, No. 2018AP257, ¶38.

¶5 Both trial counsel and postconviction counsel testified at the hearing.
Gonzalez’s trial counsel, Nelida Cortes, testified that she did not believe she had
any evidence that “would have benefitted a self-defense claim.” Cortes also
testified that Gonzalez’s version of events did not support a self-defense claim.
Cortes stated that she spoke “with local attorneys that are considered experts” and
with “three individuals who are not attorneys who work in the area of self-defense
who were referred to [her] as experts.” Cortes said that “none of them believ[ed]
he had a self-defense claim.” Cortes also stated that she advised Gonzalez not to
testify so as to prevent the State from poking significant holes in Gonzalez’s
testimony.

¶6 Gonzalez’s first postconviction counsel, Timothy Provis, testified
that he appealed Gonzalez’s convictions based on what he felt were the strongest
arguments. He testified that he sent a letter to Gonzalez, responding to each of the
issues Gonzalez inquired about and explained that he found no basis to challenge
trial counsel’s performance. Provis also testified that the issues he chose for the
appeal were “the best ones” and were “issues ... of basic fairness.” He also
testified that Gonzalez never mentioned Cortes’s advice not to testify. Provis
further stated that the record gave him no reason to raise the issue as the trial court
conducted a thorough colloquy with Gonzalez regarding Gonzalez’s decision not
to testify.

¶7 Gonzalez also testified, telling the circuit court he would have
testified, but for Cortes’s advice. He also testified in detail about what his

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No. 2021AP1496

testimony would have been; specifically, that he perceived a threat from J.C. who
pointed a gun at him, he followed him back to the tavern parking lot, and then he
perceived a mortal threat from John’s car and fired seven shots.

¶8 The circuit court denied Gonzalez’s motion for a new trial, finding
that Cortes “knew Mr. Gonzalez’s story, as she was his attorney, and believed his
testimony would not lend itself to a self-defense claim.” The circuit court stated
that trial counsel was “somehow able to argue self-defense without putting
Mr. Gonzalez up to tell his story, which did not, at the time of trial, support a
theory of self-defense.” The circuit court noted that “arguably it worked as the
jury found him guilty of the lesser-included offense.” The circuit court also found
that the ineffective assistance of counsel claim was not “clearly stronger” than the
issues postconviction counsel advanced in Gonzalez’s direct appeal, thus rejecting
Gonzalez’s ineffective assistance of postconviction counsel claim. This appeal
follows.

DISCUSSION

¶9 Absent a sufficient reason, a defendant is procedurally barred from
using a WIS. STAT. § 974.06 postconviction motion to bring claims that could have
been raised earlier. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 184-85, 517
N.W.2d 157 (1994); § 974.06(4). The ineffective assistance of postconviction
counsel may constitute a reason sufficient to overcome the procedural bar. See
State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 682-83, 556 N.W.2d
136 (Ct. App. 1996). In determining whether postconviction counsel was
ineffective, we first examine trial counsel’s performance. See State v. Ziebart,
2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369.

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¶10 To prevail on an ineffective assistance of counsel claim, a defendant
must establish that counsel performed deficiently and that this deficiency
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish deficient performance, a defendant must show specific acts or
omissions of counsel that were “outside the wide range of professionally
competent assistance.” Id. at 690. Judicial review of an attorney’s performance is
“highly deferential” and the reasonableness of an attorney’s acts must be viewed
from counsel’s contemporary perspective to eliminate the distortion of hindsight.
State v. Maloney, 2005 WI 74, ¶25, 281 Wis. 2d 595, 698 N.W.2d 583. To prove
prejudice, the defendant must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. We need not address both prongs of the
test if the defendant fails to make a sufficient showing on either one. See id. at
697.

¶11 We conclude that Gonzalez cannot demonstrate that Cortes rendered
ineffective assistance. Cortes testified that she made a strategic decision in
advising Gonzalez not to testify because Gonzalez’s factual rendition of events did
not support a self-defense claim. We give great deference to trial counsel’s
decisions in choosing a trial strategy. See State v. Balliette, 2011 WI 79, ¶26, 336
Wis. 2d 358, 805 N.W.2d 334. We will sustain counsel’s strategic decisions, as
long as they were reasonable under the circumstances. See id. Cortes stated that
she consulted with multiple attorneys and self-defense experts, none of whom
thought that Gonzalez had a strong self-defense claim. Indeed, counsel expressed
concern that Gonzalez’s testimony would weaken his defense. Cortes’s strategy
was not objectively unreasonable.

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¶12 As to Gonzalez’s claim that Provis rendered ineffective assistance as
postconviction counsel, we again note that absent a sufficient reason, Gonzalez is
procedurally barred from raising issues in a WIS. STAT. § 974.06 postconviction
motion that he could have raised on direct appeal. See Escalona-Naranjo, 185
Wis. 2d at 181-82. Where, as here, the ineffective assistance of postconviction
counsel is alleged as the sufficient reason, the defendant must set forth with
particularity facts showing that postconviction counsel’s performance was both
deficient and prejudicial. See Balliette, 336 Wis. 2d 358, ¶¶58-59. In addition,
the defendant must allege that his newly raised issue is “clearly stronger” than
those raised previously. See State v. Romero-Georgana, 2014 WI 83, ¶¶43-46,
360 Wis. 2d 522, 849 N.W.2d 668.

¶13 Because Gonzalez’s ineffective assistance of counsel claim fails, his
claim of ineffective assistance of postconviction counsel necessarily fails. See
Ziebart, 268 Wis. 2d 468, ¶15. Accordingly, Gonzalez has not demonstrated that
his ineffective assistance of counsel claim is clearly stronger than the claims his
postconviction counsel brought in his direct appeal. See Romero-Georgana, 360
Wis. 2d 522, ¶4. As a result, Gonzalez is barred from obtaining relief by way of a
WIS. STAT. § 974.06 motion. See Escalona-Naranjo, 185 Wis. 2d at 185-86.

¶14 For the foregoing reasons, we affirm the circuit court.

By the Court.—Order affirmed.

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

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