ineffective assistance of counsel claim in Wisconsin

2026An ineffective assistance of counsel claim in a TPR case is analyzed under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

2026Justice was convicted, following a jury trial, of 2 counts of repeated sexual assault of a child, 2 counts of child enticement, and 2 counts of causing a child under the age of 13 to view/listen to sexual activity.1 The State argues that Justice’s trial counsel was not ineffective and that the circuit court erroneously applied the ineffective assistance of counsel analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). ¶2 We agree with the State and conclude that Justice’s trial counsel was not constitutionally ineffective.

2026Millighan’s trial counsel, Millighan, and social worker Scott Ebert provided testimony at the hearing. ¶37 At the outset we note that “where a lower court determines that counsel had a reasonable trial strategy, the strategy ‘is virtually unassailable in an ineffective assistance of counsel analysis.’” State v. Breitzman, 2017 WI 100, ¶65 , 378 Wis. 2d 431 , 904 N.W.2d 93 (citation omitted).

2026Millighan’s trial counsel, Millighan, and social worker Scott Ebert provided testimony at the hearing. ¶37 At the outset we note that “where a lower court determines that counsel had a reasonable trial strategy, the strategy ‘is virtually unassailable in an ineffective assistance of counsel analysis.’” State v. Breitzman, 2017 WI 100, ¶65 , 378 Wis. 2d 431 , 904 N.W.2d 93 (citation omitted).

2026However, “a defendant need not prove the outcome would ‘more likely than not’ be different in order to establish prejudice in ineffective assistance cases.” Sholar, 381 Wis. 2d 560, ¶44 (citation omitted). ¶47 Our review of an ineffective assistance of counsel claim “is a mixed question of fact and law.” State v. Erickson, 227 Wis. 2d 758, 768 , 596 N.W.2d 19 No. 2024AP56-CR 749 (1999).

2023State v. Erickson, 227 Wis. 2d 758, 769 , 596 N.W.2d 749 (1999). “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citations omitted). ¶24 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2022See State v. Johnson, 153 Wis. 2d 121, 128 , 449 N.W.2d 845 (1990). 14 No. 2021AP731-CR ¶33 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2022See State v. Johnson, 153 Wis. 2d 121, 128 , 449 N.W.2d 845 (1990). 14 No. 2021AP731-CR ¶33 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2023State v. Erickson, 227 Wis. 2d 758, 769 , 596 N.W.2d 749 (1999). “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citations omitted). ¶24 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2023State v. Erickson, 227 Wis. 2d 758, 769 , 596 N.W.2d 749 (1999). “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citations omitted). ¶24 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2021Rather, as we discuss below, we conclude that Lee does not meet the ineffective assistance of counsel exception to the guilty plea waiver rule because his claims are conclusory and insufficiently plead. 6 No. 2017AP2482 Lockhart, 474 U.S. 52, 59 (1985); see also State v. Bentley, 201 Wis. 2d 303, 315-16 , 548 N.W.2d 50 (1996). ¶21 Lee’s WIS.

2021Rather, as we discuss below, we conclude that Lee does not meet the ineffective assistance of counsel exception to the guilty plea waiver rule because his claims are conclusory and insufficiently plead. 6 No. 2017AP2482 Lockhart, 474 U.S. 52, 59 (1985); see also State v. Bentley, 201 Wis. 2d 303, 315-16 , 548 N.W.2d 50 (1996). ¶21 Lee’s WIS.

2020See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Coffee, 389 Wis. 2d 627 , ¶22; Pinno, 356 Wis. 2d 106, ¶¶81-86 .5 ¶30 Likewise, the United States Supreme Court has affirmed that, even as it applies to alleged structural errors, absent an objection at trial and on appeal, the issue is to be reviewed under an ineffective assistance of counsel framework. 5 We note that newly discovered evidence supports a claim for further review.

2020See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Coffee, 389 Wis. 2d 627 , ¶22; Pinno, 356 Wis. 2d 106, ¶¶81-86 .5 ¶30 Likewise, the United States Supreme Court has affirmed that, even as it applies to alleged structural errors, absent an objection at trial and on appeal, the issue is to be reviewed under an ineffective assistance of counsel framework. 5 We note that newly discovered evidence supports a claim for further review.

2025Jackson, 405 Wis. 2d 458, ¶10 . “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” State v. 3 See State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 5 No. 2023AP1807-CR Guerard, 2004 WI 85, ¶43 , 273 Wis. 2d 250 , 682 N.W.2d 12 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). ¶12 “‘An ineffective assistance of counsel claim presents a mixed question of fact and law.’” State v. Mull, 2023 WI 26, ¶31 , 406 Wis. 2d 491 , 987 N.W.2d 707 (quoting State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 ).

2025Jackson, 405 Wis. 2d 458, ¶10 . “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” State v. 3 See State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 5 No. 2023AP1807-CR Guerard, 2004 WI 85, ¶43 , 273 Wis. 2d 250 , 682 N.W.2d 12 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). ¶12 “‘An ineffective assistance of counsel claim presents a mixed question of fact and law.’” State v. Mull, 2023 WI 26, ¶31 , 406 Wis. 2d 491 , 987 N.W.2d 707 (quoting State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 ).

2025In the context of an argument for plea withdrawal, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o 1 State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 3 No. 2023AP2209-CR satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. ¶7 “An ineffective assistance of counsel claim presents a mixed q

2023In the context of an argument for plea withdrawal, the prejudice prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. ¶47 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d

2019A reasonable probability is a probability sufficient to undermine confidence in the outcome." See id. , ¶20 (quoting Strickland , 466 U.S. at 694 ). ¶12 Our review of an ineffective assistance of counsel claim presents a mixed question of fact and law.

2018A defendant must establish two elements to show that his counsel's assistance was constitutionally ineffective: (1) counsel's performance was deficient; and (2) "the deficient performance resulted in prejudice to the defense." Id. ¶20 As to the first prong of the ineffective assistance of counsel test, "[c]ounsel's conduct is constitutionally deficient if it falls below an objective standard of reasonableness." State v. Thiel , 2003 WI 111 , ¶ 19, 264 Wis. 2d 571 , 665 N.W.2d 305 .

2025Jackson, 405 Wis. 2d 458, ¶10 . “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” State v. 3 See State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 5 No. 2023AP1807-CR Guerard, 2004 WI 85, ¶43 , 273 Wis. 2d 250 , 682 N.W.2d 12 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). ¶12 “‘An ineffective assistance of counsel claim presents a mixed question of fact and law.’” State v. Mull, 2023 WI 26, ¶31 , 406 Wis. 2d 491 , 987 N.W.2d 707 (quoting State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 ).

2025Jackson, 405 Wis. 2d 458, ¶10 . “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” State v. 3 See State v. Machner, 92 Wis. 2d 797 , 285 N.W.2d 905 (Ct. App. 1979). 5 No. 2023AP1807-CR Guerard, 2004 WI 85, ¶43 , 273 Wis. 2d 250 , 682 N.W.2d 12 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). ¶12 “‘An ineffective assistance of counsel claim presents a mixed question of fact and law.’” State v. Mull, 2023 WI 26, ¶31 , 406 Wis. 2d 491 , 987 N.W.2d 707 (quoting State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 ).

2024Accordingly, counsel’s decision, based on a thorough explanation of his rational thought process, is “given great deference,” see Balliette, 336 Wis. 2d 358, ¶26 , and “is virtually unassailable in an ineffective assistance of counsel analysis,” see State v. Maloney, 2004 WI App 141, ¶23 , 275 Wis. 2d 557 , 685 N.W.2d 620 ; Strickland, 466 U.S. at 690 .

2021Id. ¶22 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2023State v. Counihan, 2020 WI 12, ¶28 , 390 Wis. 2d 172 , 938 N.W.2d 530 (“Generally, if a claim is forfeited, we address that claim in the context of ineffective assistance of counsel.”); State v. Carprue, 2004 WI 111, ¶47 , 274 Wis. 2d 656 , 683 N.W.2d 31 ; Winnebago County v. J.M., 2018 WI 37, ¶¶7, 34, 45 , 381 Wis. 2d 28 , 911 N.W.2d 41 .

2023State v. Counihan, 2020 WI 12, ¶28 , 390 Wis. 2d 172 , 938 N.W.2d 530 (“Generally, if a claim is forfeited, we address that claim in the context of ineffective assistance of counsel.”); State v. Carprue, 2004 WI 111, ¶47 , 274 Wis. 2d 656 , 683 N.W.2d 31 ; Winnebago County v. J.M., 2018 WI 37, ¶¶7, 34, 45 , 381 Wis. 2d 28 , 911 N.W.2d 41 .

2018Our supreme court has made clear that "the Strickland test is the proper test to apply in the context of an ineffective assistance of counsel claim." State v. Mayo , 2007 WI 78 , ¶ 60, 301 Wis. 2d 642 , 734 N.W.2d 115 .

2018Our supreme court has made clear that "the Strickland test is the proper test to apply in the context of an ineffective assistance of counsel claim." State v. Mayo , 2007 WI 78 , ¶ 60, 301 Wis. 2d 642 , 734 N.W.2d 115 .

2025See State v. Romero-Georgana, 2014 WI 83, ¶¶39-41 , 360 Wis. 2d 522 , 849 N.W.2d 668 ; State v. Hudson, 2013 WI App 120, ¶11 , 351 Wis. 2d 73 , 839 N.W.2d 147 .

2025See State v. Romero-Georgana, 2014 WI 83, ¶¶39-41 , 360 Wis. 2d 522 , 849 N.W.2d 668 ; State v. Hudson, 2013 WI App 120, ¶11 , 351 Wis. 2d 73 , 839 N.W.2d 147 .

2026However, “a defendant need not prove the outcome would ‘more likely than not’ be different in order to establish prejudice in ineffective assistance cases.” Sholar, 381 Wis. 2d 560, ¶44 (citation omitted). ¶47 Our review of an ineffective assistance of counsel claim “is a mixed question of fact and law.” State v. Erickson, 227 Wis. 2d 758, 768 , 596 N.W.2d 19 No. 2024AP56-CR 749 (1999).

2026If the motion “does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing.” Id. (citation omitted). ¶57 To prevail on an ineffective assistance of counsel claim, a defendant must typically show both that his or her attorney’s performance was deficient and that the deficient performance prejudiced the defense.

2026The circuit court’s decision to deny an insufficiently pleaded motion is reviewed “under the deferential erroneous exercise of discretion standard.” Id. ¶11 For an ineffective assistance of counsel claim to be successful, a defendant must demonstrate both that: (1) counsel’s representation was deficient; and (2) the deficiency was prejudicial.

2025As a threshold matter, we note that Hewitt also argues, in his reply brief, that our standard of review set forth in State v. Allen, 2004 WI 106 , 274 Wis. 2d 568 , 682 N.W.2d 433 , is inapplicable to his case because he is not raising an ineffective assistance of counsel claim.

2021In so doing, the defendant must present more than a “bare allegation that he would have pleaded differently and gone to trial.” State v. Dillard, 2014 WI 123, ¶99 , 358 Wis. 2d 543 , 859 N.W.2d 44 . ¶14 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2021In so doing, the defendant must present more than a “bare allegation that he would have pleaded differently and gone to trial.” State v. Dillard, 2014 WI 123, ¶99 , 358 Wis. 2d 543 , 859 N.W.2d 44 . ¶14 “An ineffective assistance of counsel claim presents a mixed question of fact and law.” State v. Pico, 2018 WI 66, ¶13 , 382 Wis. 2d 273 , 914 N.W.2d 95 .

2011Our supreme court has explained that the "test for harmless error [is] essentially consistent with the test for prejudice in an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984)." State v. Harvey, 2002 WI 93, ¶ 41 , 254 Wis. 2d 442 , 647 N.W.2d 189 (parallel citations omitted).

2011Our supreme court has explained that the "test for harmless error [is] essentially consistent with the test for prejudice in an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984)." State v. Harvey, 2002 WI 93, ¶ 41 , 254 Wis. 2d 442 , 647 N.W.2d 189 (parallel citations omitted).

2025Id. ¶17 To prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.

2025See State v. Nielsen, 2001 WI App 192, ¶14 , 247 Wis. 2d 466 , 634 N.W.2d 325 . 30 No. 2023AP1628-CR 2.

2018Id. ¶27 An ineffective assistance of counsel claim in a termination of parental rights proceeding is analyzed under the two-part test set forth in Strickland v. Washington , 466 U.S. 668 (1984).

2014The Ramonez court refused to defer to the circuit court's assessment as to the lack of credibility and helpfulness of the witnesses, reasoning in pertinent part that "our 2 See, e.g., State v. Friedrich, 135 Wis. 2d 1, 16 , 398 N.W.2d 763 (1987) ("The credibility of witnesses and the weight given to their testimony are matters left to the jury's judgment."). 3 State v. Pitsch, 124 Wis. 2d 628, 641 , 369 N.W.2d 711 (1985) (explaining that, in establishing prejudice in the context of an ineffective assistance of counsel claim, a defendant need not demonstrate that counsel's deficient error more

2025Id. ¶15 An ineffective assistance of counsel claim requires a defendant to show both that his or her counsel’s performance was deficient and that the deficient performance prejudiced the defense.

2024In evaluating an ineffective assistance of counsel claim, we apply the well-established, two- prong Strickland test: “[A] defendant must demonstrate both that (1) counsel’s representation was deficient, and (2) the deficiency was prejudicial.” Ruffin, 401 Wis. 2d 619, ¶29 ; Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Carter, 2010 WI 40, ¶22 , 324 Wis. 2d 640 , 782 N.W.2d 695 ; State v. Sholar, 2018 WI 53, ¶32 , 381 Wis. 2d 560 , 912 N.W.2d 89 .

2024State v. Jeninga, 2019 WI App 14, ¶22 , 386 Wis. 2d 336 , 925 N.W.2d 574 ; see also State v. Jeannie M.P., 2005 WI App 183, ¶26 , 286 Wis. 2d 721 , 703 N.W.2d 694 (the ineffective assistance of counsel inquiry considers “the totality of the evidence before the trier of fact” (emphasis added)).

2024State v. Jeninga, 2019 WI App 14, ¶22 , 386 Wis. 2d 336 , 925 N.W.2d 574 ; see also State v. Jeannie M.P., 2005 WI App 183, ¶26 , 286 Wis. 2d 721 , 703 N.W.2d 694 (the ineffective assistance of counsel inquiry considers “the totality of the evidence before the trier of fact” (emphasis added)).

2022Analysis ¶60 As previously noted, in bringing an ineffective assistance of counsel challenge, it is the defendant who “bears the burden of proving that counsel’s performance was deficient and that such performance prejudiced the defense.” State v. Roberson, 2006 WI 80, ¶24 , 292 Wis. 2d 280 , 717 N.W.2d 111 .

2022Analysis ¶60 As previously noted, in bringing an ineffective assistance of counsel challenge, it is the defendant who “bears the burden of proving that counsel’s performance was deficient and that such performance prejudiced the defense.” State v. Roberson, 2006 WI 80, ¶24 , 292 Wis. 2d 280 , 717 N.W.2d 111 .