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  • WisBar News
    November 18, 2014

    Sex Assault Defendant’s Ineffective Assistance of Counsel Claim Fails

    Joe Forward

    Nov. 18, 2014 – David Carlson, who pled guilty to sexual assault of a child, said his counsel was ineffective for telling him that pleading guilty would give him a “realistic possibility” of avoiding prison time. Recently, a state appeals court rejected the claim.

    Carlson received a 15-year prison sentence for sexually assaulting his girlfriend’s daughter during a four-year period that began when the daughter was 10 or 11 years old. The prison sentence was to precede eight years of extended supervision.

    Carlson was facing a 40-year maximum sentence on each count charged. He said his defense counsel induced the plea by suggesting a probation sentence was possible.

    Evidence supported that deficiency claim, Carlson argued, because the prosecutor rejected a nonprison sentence during plea talks and other defendants facing similar charges rarely if ever received deals that did not include prison time.

    But in State v. Carlson, 2013AP2559-CR (Nov. 12, 2014), a three-judge panel for the District II Court of Appeals refused to let Carlson withdraw his guilty plea, noting that Carlson’s own conduct, not his lawyer’s defense strategy, sealed his own fate.

    “The question is whether it was objectively reasonable to advise Carlson that a guilty plea offered a realistic possibility of a nonprison sentence,” wrote Chief Judge Richard Brown. “In view of the evidence … the advice was objectively reasonable.”

    The panel noted that Carlson was a first-time offender and thus eligible for nonprison sentence, but he minimized the crimes and did not show empathy for the victim in an interview with a presentence investigator. The court considered this at sentencing.

    In addition, the panel noted that a judges determine sentences, not prosecutors. So the prosecutor’s rejection of a nonprison plea deal was not determinative.

    “A guilty plea was an objectively reasonable strategy for obtaining a nonprison sentence,” Judge Brown wrote. “Among the strongest and best ‘ammunition’ left to Carlson was a guilty plea, which could eliminate the additional trauma of trial and demonstrate his remorse.” But Carlson didn’t show much remorse before sentencing.

    After his interview with a presentence investigator who said he blamed the victim, Carlson’s counsel argued that Carlson did not express acceptance of responsibility well. Defense counsel said Carlson was making progress with a counselor and the prison sentence recommended by the state was not warranted in this case.

    The sentencing court noted that Carlson accepted responsibility by pleading guilty but was alleged to have assaulted the underage victim more than 300 times. The judge also noted some of the repugnant statements that Carlson told the presentence investigator.

    Allowing probation and work release for this type of conduct did not protect the community and sent the wrong message, the sentencing judge had noted.

    On appeal, Carlson also brought forth objective sentencing data to argue that there was no possibility of a nonprison sentence, and his lawyer should have known that.

    But the appeals panel noted that Carlson’s data set only included five defendants who pled guilty to those same charges, “which cannot show that a nonprison sentence was never a realistic possibility,” wrote Judge Brown for the three-judge panel.

    “In addition, although a defense attorney is free to consider sources of objective sentencing data, failing to do so is not ineffective assistance. Sentencing in Wisconsin is individualized,” wrote Brown, noting that sentencing guidelines have been abolished.

    Finally, the appeals panel rejected Carlson’s claim that the sentence was unduly harsh He argued that he had no criminal record and he took responsibility by pleading guilty.

    The panel noted that Carlson admitted to five or six assaults over three or four years, and the maximum prison sentence for those crimes was 50 years. He received only one-third of that, and the court had a rational basis to impose it, the panel explained.

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