STATE OF WISCONSIN

CIRCUIT COURT BRANCH I

ONEIDA COUNTY

State of Wisconsin, Plaintiff, vs. John Q. Defendant, Defendant.

BRIEF IN SUPPORT OF DEFENDANTS MOTION FOR RESENTENCING

File No. XXCFXXX

The defendant, John Q. Defendant, submits this Memoradum through counsel in support of his motion for resentencing. Background On DATE, the defendant was convicted of second degree sexual assault of a child, a violation of Wis. Stat. 948.02, in the Circuit Court for Oneida County, the Honorable Mark Mangerson, Circuit Judge, presiding. The conviction resulted from the defendants plea of no contest. Upon conviction, the court withheld sentence and placed the defendant on probation for a period of six years, a condition being one year in the county jail, apparently without good time. When imposing the term of probation, the court noted that it [did]nt think we see any indicators of a predator in this situation. (P.S. at 16)1. The court then gave a detailed statement of its reasoning behind that determination, including the defendants lack of criminal history, the lack of sophistication in the offense, his mental health, and his ready admission to the offense. (P.S. at 16-17). That term of probation was revoked. On DATE, the Department of Corrections recommended revocation of the defendants probation. On DATE, an administrative law judge issued an order revoking the defendants probation. On DATE, the defendant appeared again in the Cir1

P.S. citations denote the transcript of the plea and sentencing hearing that took place on June 22, 2010. 1

cuit Court, the Honorable Patrick F. OMelia,2 presiding, for a sentencing hearing following revocation of probation. No transcript of the original sentencing hearing had been filed. 3 The court reviewed the court file and Judge Mangersons notes from the original sentencing. (S.R. at 13). 4 The court ultimately imposed a twenty-two year prison term consisting of seven years of initial confinement followed by fifteen years of extended supervision. Before imposing sentence, the court noted that the offense was [c]ompletely predatory on [the defendants] part. (S.R. at 18). It further noted that the defendant is a threat to the community. (S.R. at 23). Argument I. The defendant is entitled to resentencing because the court failed to review the tran-

script of the original sentencing proceeding. In sentencing after revocation. . . , when the judge is not the one who presided at the original sentencing, it is particularly important that the judge . . . be able to rely upon the entire record, including the previous comments made at the first sentencing. State v. Reynolds, 2002 WI App 15, 9, 249 Wis. 2d 798, 643 N.W.2d 165 (quoting State v. Wegner, 2000 WI App 231, 9, 239 Wis. 2d 96, 619 N.W.2d 289). The facts in Reynolds are strikingly similar to the facts in this case. The defendant in Reynolds was convicted of second degree sexual assault of a child, and the original sentencing court, the Honorable David A. Hansher, presiding, withheld sentence and placed the defendant on probation. Id. at 4. The court explained that the offense was on the lower end of considering how outrageous it is. Id. A different judge, the Honorable Daniel L. Konkol, presided over

In 2011, Judge Mangerson was appointed to the Court of Appeals. His successor in Branch II, the Honorable Michael Bloom, was district attorney at the time of the defendants prosecution and thus was disqualified. 3 Although the transcript does not contain the date of its preparation, CCAP indicates that it was filed on October 19, 2012. 4 S.R. citations denote the transcript of the sentencing hearing after revocation that took place on September 12, 2012. 2

the sentencing after revocation. Id. at 6. Judge Konkol reviewed the complaint, the information, and a court memo. Id. At the sentencing after revocation, the court stated that the offense was extremely serious and particularly aggravated. Id. at 7. The Court of Appeals, found that given Judge Hanschers and Judge Konkols significantly different comments on the severity of the office, we are not satisfied that the sentencing after revocation was based on accurate, complete and current information. Id. at 10. Here, the facts, including the offense, are almost identical. Judge Mangerson withheld sentence and placed the defendant on probation because, among other reasons, he did not find the defendant to be a predator. Following revocation, Judge OMelia ordered a lengthy prison term, reaching the disparate conclusion that the offense was completely predatory. Because the court was unaware of the entire record, including the comments made by the judge who imposed probation, the sentence was an erroneous exercise of discretion and the defendant is entitled to a new sentencing hearing. II. The defendant is entitled to resentencing because his attorney at the sentencing

hearing after revocation, Jane F. Attorney, was constitutionally ineffective for failing to order and review a transcript of the original sentencing hearing. A claim of ineffective assistance of counsel has two components. First, the defendant must show that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). See also State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). In showing deficiency, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 688. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687. To establish prejudice, [t]he defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. In this case, Ms. Attorneys performance was deficient because he failed to order and review a transcript of the original sentencing hearing, and thus was unable to properly prepare for the hearing. Competent representation requires the preparation necessary for the representation. SCR20:1.1. The ALJ issued his decision that the defendant be revoked more than two months prior to the sentencing hearing after revocation. Thus, there was sufficient time for a transcript of the original sentencing to be prepared and reviewed. This deficient performance prejudiced the defendant because his attorney did not know the rationale Judge Mangerson used in his decision to order probation rather than a prison term. Had his attorney known this rational, he could have based his sentencing argument upon the courts previous rationale. Additionally, had the transcript been ordered, it would have been available for review by the court prior to the sentencing, likely mooting the previous issue. Because his attorneys failure to order a transcript of the original sentencing hearing co nstituted deficient performance and because this deficient performance prejudiced the defendant by keeping highly probative and beneficial information from the sentencing court, the defendants federal and state constitutional rights to counsel were violated and he is entitled to a new sentencing hearing. Conclusion Based on the foregoing, the defendant, John Q. Defendant, respectfully requests that the court vacate the judgment of conviction against him and order a new sentencing hearing.

Dated this __ day of January, 2013. Respectfully submitted, Chad R. Thomas Attorney for Defendant

______________________________ By: Chad R. Thomas State Bar No. 1086887 P.O. Box 312 Wrightstown, WI 54180 (920) 403-0444 (920) 462-3627 (facsimile) chadrthomas@gmail.com