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State v. Jackowski - 2014 WI App 90, 356 Wis. 2d 328, 855 N.W.2d 492


An appellate court follows a two-part test for ineffective assistance of counsel claims. A defendant must prove both that his or her attorney's performance was deficient and that the deficient performance was prejudicial. The appellate court determines that an attorney's performance is deficient if the attorney made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, U.S. Const. amend. VI. The defendant must also show the performance was prejudicial, which is defined as a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A movant must prevail on both parts of the test to be afforded relief.


Defendant was charged with operating while intoxicated and operating with a prohibited alcohol concentration. When the arresting officer testified, he volunteered the information that the case was defendant’s fifth offense. Defendant’s counsel moved for a mistrial. The trial court denied the motion after the state asserted that at the time the testimony was given, there had not yet been a stipulation as to prior convictions, so the burden was on the state to demonstrate that defendant had prior convictions. The jury found defendant guilty of both charges. Defendant filed a motion seeking a new trial on grounds that his counsel had provided ineffective assistance when she failed to address the issue of stipulating to his prior operating while intoxicated convictions before the start of trial. The trial court denied defendant’s motion. The appellate court affirmed the trial court’s judgment.


Did the record conclusively demonstrate that defendant was not prejudiced by his trial counsel's alleged deficient performance, consisting of the counsel’s failure to address the issue of stipulating to defendant’s prior operating while intoxicated convictions?




Defendant provided no authority for the proposition that the prejudice prong of the ineffective-assistance-of-counsel analysis was automatically satisfied where a witness testified about the number of prior operating while intoxicated convictions. Further, defendant did not demonstrate that he was prejudiced by counsel's alleged ineffectiveness because the jury heard testimony from a gas station clerk who said that she saw a vehicle enter the gas station parking lot and then saw defendant, who appeared to be drunk, get out of the vehicle. There was evidence that within two hours of driving, defendant's blood was drawn, and the test results indicated that his blood alcohol content was .18 percent, which was nine times the legal limit for defendant. The arresting officer's reference to defendant’s prior convictions did not undermine confidence in the outcome of the trial, because of the overwhelming evidence of his guilt. Thus, defendant was not prejudiced by the lack of a pretrial stipulation to prior convictions.

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