State v. Asmar M. Young ( 2019 )

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.
July 2, 2019
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. 2018AP1591-CR Cir. Ct. No. 2015CF3225
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ASMAR M. YOUNG,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Kessler, Brennan and Kloppenburg, JJ.
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. 2018AP1591-CR
¶1 PER CURIAM. Asmar M. Young entered pleas to four crimes
committed over five days. Young filed a postconviction motion to withdraw his
pleas, arguing that: (1) his pleas were not knowingly and intelligently entered
because the circuit court failed to establish a factual basis for one of the
convictions; (2) his pleas were not knowingly, voluntarily, and intelligently
entered because (a) he was not advised of and did not understand the elements of
the crimes and the maximum penalties, and (b) his original trial counsel provided
ineffective assistance by advising Young to enter the pleas, and by not adequately
explaining the elements of the crimes and the maximum penalties; and (3) his
replacement counsel provided ineffective assistance by failing to raise these issues
in his presentencing plea withdrawal motion. The court denied Young’s
postconviction motion without a hearing. Young makes the same arguments on
appeal. As we explain, we reject Young’s arguments and affirm.
BACKGROUND
¶2 The criminal complaint described the following five crimes:
• On the afternoon of July 8, 2015, two men, Z.D. and D.S., were
sitting in the front seat of a car when a male entered the car, pointed
a pistol at them, and took the keys to the car, cash, and a cell phone
belonging to one of the men. A second male took a wristwatch from
one of the men. A third male accompanied the other two. The three
males left in a red four-door car with tinted windows and a
temporary license plate.
• At about midnight on July 9, 2015, Z.D. and D.S., who had been
robbed on July 8, saw the same red four-door car with a temporary
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No. 2018AP1591-CR
license plate, followed the car, and were shot at by the same males
who had robbed them.
• At about 4:00 a.m. on July 9, 2015, L.A. (misidentified in the
criminal complaint as L.J.) died of a single gunshot wound sustained
as he drove away from two gunmen who had emerged from a red
four-door car with tinted windows and who had fired at him at close
range.
• On July 11, 2015, a male armed with a handgun robbed D.K. of his
car keys and stole his car from an apartment complex parking lot. A
red car with a temporary license plate was seen in the complex at the
time of the theft and was located near the stolen car when the stolen
car was later recovered.
• On July 13, 2015, a video recording showed an altercation between
Young and J.T. as Young left a gas station, and the video showed
Young then shooting with a handgun at a car into which J.T. had
withdrawn. Young was wearing a T-shirt with the logo “LRG” on
the front and was accompanied by two minor females.
¶3 According to the criminal complaint, the two men robbed in their car
on July 8 identified Young as one of the males who robbed them at gunpoint.
Also according to the criminal complaint, D.K. told police that Young is his
cousin and that, on the day D.K.’s car was stolen, Young came to his apartment,
told D.K. that D.K’s car window had been smashed, and stayed in the apartment
while D.K. went to check on his car. At that point D.K.’s car was stolen at
gunpoint as described above, and Young left when D.K. returned to the apartment.
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No. 2018AP1591-CR
¶4 According to the criminal complaint, on July 16, 2015, law
enforcement officers located Young inside a residence; he was wearing a T-shirt
with the logo “LRG” on the front; two minor females were present; and a 9
millimeter semi-automatic pistol was located in a couch. Forensic testing showed
that the casing from that pistol matched the casings recovered from the scene of
the shooting shortly after midnight on July 9, the scene of the shooting of L.A. at
4:00 a.m. on July 9, and the scene of the shooting of J.T. on July 13.
¶5 The State initially charged Young with two counts of armed robbery
as a party to a crime for the July 8 robbery, one count of armed robbery as a party
to a crime for the July 11 stealing of the car, and first-degree recklessly
endangering safety with use of a dangerous weapon and possession of a firearm by
a felon for the July 13 shooting. The State subsequently filed several amended
informations, ultimately adding one count of first-degree reckless homicide as a
party to a crime with use of a dangerous weapon for the July 9 shooting death of
L.A. and three additional counts of possession of a firearm by a felon.
¶6 On the day the case was scheduled for trial, the parties told the
circuit court that Young would enter pleas, and the court scheduled a plea hearing
for two days later. At the plea hearing, Young pleaded no contest to one count of
first-degree reckless homicide and guilty to one count of armed robbery, one count
of first-degree recklessly endangering safety, and one count of possession of a
firearm by a felon.
¶7 Subsequently, Young told the circuit court he wanted to withdraw
his pleas because his trial counsel pressured him into entering the pleas. The court
granted counsel’s motion to withdraw, and Young’s replacement counsel filed a
motion to withdraw Young’s pleas. The court held a hearing at which Young and
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No. 2018AP1591-CR
trial counsel testified. At the conclusion of the hearing, the court denied Young’s
plea withdrawal motion.
¶8 After a competency examination determined that Young was
competent to proceed and was malingering, the case proceeded to sentencing.
¶9 Postconviction, Young’s competence was again evaluated and he
was found competent to proceed. Young then filed a motion to withdraw his
pleas, and the circuit court denied the motion without a hearing. Young appeals.
¶10 We will relate additional facts, including details of the plea hearing
and the hearing on Young’s presentencing plea withdrawal motion, in the
discussion that follows.
DISCUSSION
¶11 Young argues that he is entitled to withdraw his plea to the homicide
count as not knowingly and intelligently entered because the circuit court failed to
establish a factual basis for his plea to that count. Young also argues that he is
entitled to an evidentiary hearing on his argument that his pleas were not
knowingly, voluntarily, and intelligently entered because: (1) he was not advised
of and did not understand the elements of the crimes and the maximum penalties;
(2) his trial counsel provided ineffective assistance by advising Young to enter the
pleas and by not adequately explaining the elements of the crimes and the
maximum penalties; and (3) replacement counsel provided ineffective assistance
by failing to raise these issues in his presentencing plea withdrawal motion. We
address and reject each argument in turn.
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No. 2018AP1591-CR
I. Failure to Establish Factual Basis for Homicide Plea1
¶12 When a defendant moves to withdraw his or her plea after
sentencing, “the defendant carries the heavy burden of establishing, by clear and
convincing evidence, that the [circuit court] should permit the defendant to
withdraw the plea to correct a manifest injustice.” State v. Thomas, 2000 WI 13,
¶16, 232 Wis. 2d 714, 605 N.W.2d 836 (citation and internal quotation marks
omitted). “[I]f a circuit court fails to establish a factual basis” for a plea, as
required by WIS. STAT. § 971.08(1)(b) (2017-18),2 “manifest injustice has
occurred.” Thomas, 232 Wis. 2d 714, ¶17. The establishment of a factual basis is
necessary for a plea to be knowing and intelligent. See State v. Lackershire, 2007
WI 74, ¶¶34-35, 301 Wis. 2d 418, 734 N.W.2d 23 (stating that “establishing a
factual basis under § 971.08(1)(b) is necessary for a valid plea” and “helps ensure
that the defendant’s plea is knowing and intelligent” (citation omitted)). Pertinent
here, establishing the factual basis for a plea means establishing “that a crime has
been committed and it is probable that the defendant committed it.” State v.
Payette, 2008 WI App 106, ¶7, 313 Wis. 2d 39, 756 N.W.2d 423.
1
This challenge implicates the circuit court’s duty in the plea colloquy to establish a
factual basis for a plea. Challenges that a court has not fulfilled its plea colloquy duties are
typically addressed under the analysis set forth in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d
12 (1986). However, our supreme court has acknowledged that “applying the Bangert procedure
for failure to satisfy the factual basis requirement is an awkward fit.” State v. Lackershire, 2007
WI 74, ¶48, 301 Wis. 2d 418, 734 N.W.2d 23. Accordingly, we address Young’s factual-basis
challenge in this section separately from the Bangert analysis that we apply to his other plea
colloquy defect challenges in the section that follows.
2
WISCONSIN STAT. § 971.08(1)(b) provides that before a court accepts a plea of guilty or
no contest, it shall “[m]ake such inquiry as satisfies it that the defendant in fact committed the
crime charged.” All references to the Wisconsin Statutes are to the 2017-18 version unless
otherwise noted.
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No. 2018AP1591-CR
¶13 Here, the circuit court relied on the criminal complaint to establish
the factual basis for the plea. “Whether the complaint alleges sufficient facts to
establish probable cause that [the defendant] committed the crimes charged is a
question of law which we review de novo.” Id., ¶14.3
¶14 Young does not argue that the criminal complaint contains
insufficient facts to establish that the crime of first-degree reckless homicide
occurred. Rather, Young argues that there is no factual basis for the homicide plea
because the criminal complaint does not contain facts connecting Young to the
homicide described in the criminal complaint. That is, Young argues that the
3
As the parties note, in State v. Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d
836, the supreme court, in reviewing a factual-basis claim, stated, “A court’s decision to allow
withdrawal of a guilty plea is a matter of discretion, subject to the erroneous exercise of
discretion standard on review.” Id., ¶13. However, the court in that case appeared to resolve the
factual-basis claim as a matter of law based on its own independent review of the record:
We conclude … that Thomas has not demonstrated the
“manifest injustice” required to withdraw his guilty plea. A
factual basis supporting the plea was established, because when
the record is viewed under the totality of the circumstances, it is
evident that Thomas assented to the facts as his counsel
stipulated to them. Since a proper factual basis was established,
the guilty plea does not result in manifest injustice.
Id., ¶27. Independent review is consistent with the supreme court’s more recent statement in
State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659, that:
When examining a defendant’s postconviction motion
for plea withdrawal, we employ the following standard of
review. “[W]hether a defendant’s motion to withdraw a guilty
plea ‘on its face alleges facts which would entitle the defendant
to relief’ and whether the record conclusively demonstrates that
the defendant is entitled to no relief” are questions of law that we
review de novo.
(citation omitted) (italics added). Accordingly, we proceed with de novo review here.
7
No. 2018AP1591-CR
criminal complaint does not establish that “it is probable that the defendant
committed” the homicide. See id., ¶7. The record refutes Young’s argument.
¶15 The criminal complaint here states the following. On the afternoon
of July 8, 2015, Young used a gun to rob Z.D. and D.S. and then left in a red four-
door car with tinted windows and a temporary license plate. Later, around
midnight, Young fired gunshots at Z.D. and D.S. from the same red four-door car
with a temporary license plate. Still later, at 4:00 a.m. on July 9, 2015, two men
emerged from a red four-door car with tinted windows and fatally shot L.A. Then,
on July 13, 2015, Young fired a gun at J.T. and injured him. The same gun was
used in each of the three shootings, and that gun was found on July 16, 2015, in
the residence where Young was located.
¶16 These facts suffice to establish that it was probably Young who used
the same gun to shoot at Z.D. and D.S. around midnight on July 9, to fatally shoot
L.A. around 4:00 a.m. on July 9, and to shoot J.T. on July 13. See id. (a sufficient
factual basis requires a showing that the defendant probably committed the crime,
not that the defendant’s guilt is established beyond a reasonable doubt).
¶17 On appeal, Young argues that the criminal complaint could not
provide a factual basis for the plea because he was not charged with the homicide
in the criminal complaint, but was rather charged in the amended information.
However, Young cites no legal authority in support of his argument, and we need
not consider it further. See Industrial Risk Insurers v. American Eng’g Testing,
Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“Arguments
unsupported by legal authority will not be considered, and we will not abandon
our neutrality to develop arguments.” (internal citation omitted)). Moreover, the
question is not whether the defendant was charged with the crime in the criminal
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No. 2018AP1591-CR
complaint, but whether the facts in the complaint constitute the crime with which
the defendant was ultimately charged and to which the defendant pleaded. See
Lackershire, 301 Wis. 2d 418, ¶48 (“[f]actual basis cases typically involve the
question of whether undisputed facts actually constitute the crime charged” at the
plea hearing).
¶18 In sum, Young fails to show the absence of a factual basis for his no-
contest plea to first-degree reckless homicide.
II. Defective Plea Colloquy and Ineffective Assistance of Trial Counsel
¶19 As stated, “When a defendant seeks to withdraw a guilty plea after
sentencing, he [or she] must prove, by clear and convincing evidence, that a
refusal to allow withdrawal of the plea would result in ‘manifest injustice.’” State
v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (quoted source
omitted). “One way for a defendant to meet this burden is to show that he [or she]
did not knowingly, intelligently, and voluntarily enter the plea.” Id. (citations
omitted).
¶20 A defendant may show that the plea was not knowingly,
intelligently, and voluntarily entered under one of two lines of cases: (1) the
Bangert line of cases, State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986),
when the plea colloquy is defective; or (2) the Nelson/Bentley line of cases,
Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley,
201 Wis. 2d 303, 548 N.W.2d 50 (1996), when “some factor extrinsic to the plea
colloquy, like ineffective assistance of counsel or coercion, renders a plea infirm.”
State v. Howell, 2007 WI 75, ¶¶2, 74, 301 Wis. 2d 350, 734 N.W.2d 48.
9
No. 2018AP1591-CR
¶21 Young argues that the circuit court erred in failing to hold an
evidentiary hearing on his postconviction motion to withdraw his pleas based on
(1) the circuit court’s failure to inform him of the elements of and maximum
penalties for the crimes, and (2) ineffective assistance of counsel. To warrant an
evidentiary hearing, Young must satisfy the requirements of Bangert or
Nelson/Bentley. See id., ¶24. We analyze Young’s first challenge to the validity
of his pleas under Bangert, and his second challenge under Nelson/Bentley.
A. Young’s First Challenge—The Circuit Court Failed to Explain the Elements
and the Maximum Penalties of the Crimes
¶22 “A defendant may invoke Bangert only by alleging that the circuit
court failed to fulfill its plea colloquy duties.” Id., ¶27. The court’s duties include
establishing that the defendant understands the elements and the maximum
penalties of the crimes. Bangert, 131 Wis. 2d at 267; Brown, 293 Wis. 2d 594,
¶35; WIS. STAT. § 971.08(1)(a).4 A Bangert motion warrants an evidentiary
hearing if the defendant (1) shows specific defects in the plea colloquy and
(2) “alleges that in fact the defendant did not know or understand the information
that should have been provided at the plea colloquy.” Howell, 301 Wis. 2d 350,
¶27; see also State v. Pegeese, 2019 WI 60, ¶26, __ Wis. 2d __, 928 N.W.2d 590.
Whether a defendant is entitled to an evidentiary hearing on a Bangert motion is a
question of law that we review independently. Howell, 301 Wis. 2d 350, ¶¶30-31;
Pegeese, __ Wis. 2d __, ¶17 (whether defendant has shown that the plea colloquy
was deficient such that a plea hearing requirement was violated is a question of
law that this court reviews independently).
4
WISCONSIN STAT. § 971.08(1)(a) provides that before a court accepts a plea of guilty or
no contest, it shall determine that the plea is made “with understanding of the nature of the charge
and the potential punishment if convicted.”
10
No. 2018AP1591-CR
¶23 Young alleges that the circuit court failed to explain, and that he did
not understand, the elements and the maximum penalties of the crimes. We
resolve this appeal by addressing only the first Bangert prong, whether the court
failed to meet its plea colloquy duties with respect to explaining and ascertaining
Young’s understanding of the elements and maximum penalties of the crimes. See
Pegeese, __ Wis. 2d __, ¶28 n.6 (addressing only whether the circuit court met its
obligations in conducting the colloquy where the defendant alleged that he did not
understand what he alleged the court did not adequately explain).
¶24 Young first alleges that the circuit court failed to explain and
ascertain that he understood the elements of the crimes, but the record shows to
the contrary. Specifically, the plea colloquy transcript shows that the court read
each element of each crime to Young and asked Young if he understood, and that
each time, Young answered that he understood. Young also signed a plea
questionnaire that stated that his attorney had explained to him the elements that
the State would have to prove beyond a reasonable doubt if he went to trial.
¶25 Young acknowledges that the circuit court explained the legal
elements of the four crimes to which Young agreed to plead but argues that the
court’s explanation was too cursory to satisfy legal requirements. Young
acknowledges that he indicated that he understood the elements of each crime but
argues that his mere answering each question “yeah” does not suffice to
demonstrate that he understood the elements.
¶26 However, Young cites no legal support for the proposition that the
circuit court must do more than what the court did here, namely, read each element
of each crime and obtain Young’s affirmation that he understood. Accordingly,
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No. 2018AP1591-CR
we do not further consider his argument as to the elements of the crime. See
Industrial Risk Insurers, 318 Wis. 2d 148, ¶25.
¶27 Second, Young alleges that the circuit court failed to explain and
ascertain that he understood the maximum penalties for each crime, but the record
refutes this argument as well. At the plea hearing, the court correctly told Young
the maximum penalty for each crime, including any penalty enhancers, and Young
told the court that he understood. In addition, the plea questionnaire that Young
signed and that the court referenced at the plea hearing also identified the correct
maximum penalties. Young fails to cite any legal authority supporting the
proposition that the court was required to do more, and, therefore, we do not
further consider his argument as to the maximum penalties. See id.¶28 In sum, the record establishes that the circuit court fully and
correctly explained the elements and maximum penalties of the crimes, and Young
fails to present any legal authority supporting the proposition that the court was
required to do more. Accordingly, Young is not entitled to an evidentiary hearing
on his Bangert challenge.
B. Young’s Second Challenge—Ineffective Assistance of Trial Counsel
¶29 A defendant is not entitled to an evidentiary hearing under
Nelson/Bentley if the defendant’s motion fails to allege sufficient facts that, if
true, would entitle the defendant to relief, or presents only conclusory allegations,
or if the record conclusively demonstrates that the defendant is not entitled to
relief. Howell, 301 Wis. 2d 350, ¶75. This court reviews independently whether a
defendant’s motion to withdraw a plea “‘on its face alleges facts which would
entitle the defendant to relief,’ and whether the record conclusively demonstrates
that the defendant is entitled to no relief.” Id., ¶78 (citation and footnote omitted).
12
No. 2018AP1591-CR
¶30 A Nelson/Bentley claim based on ineffective assistance requires a
defendant to prove both deficient performance and prejudice. Bentley, 201
Wis. 2d at 311-12. If we determine that the defendant fails to make a sufficient
showing on one of those two prongs, we need not examine the other. Strickland v.
Washington, 466 U.S. 668, 697 (1984). We resolve this appeal based on the
deficient performance prong.
¶31 To prove deficient performance, a defendant must show that, under
all of the circumstances, counsel’s specific acts or omissions fell “outside the wide
range of professionally competent assistance.” Id. at 690. We review counsel’s
strategic decisions with great deference, because a strong presumption exists that
counsel was reasonable in his or her performance. Id. at 689. “A fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Id. A defendant’s burden is to show that counsel “made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687.
¶32 “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d
164, 892 N.W.2d 611. The circuit court’s findings of fact will be upheld unless
they are clearly erroneous. Id. “‘[T]he circumstances of the case and … counsel’s
conduct and strategy’ are considered findings of fact.” Id. (alteration in original)
(citation omitted). However, whether those facts constitute deficient performance
and whether such deficient performance was prejudicial are questions of law that
we review independently. State v. Kimbrough, 2001 WI App 138, ¶27, 246
Wis. 2d 648, 630 N.W.2d 752.
13
No. 2018AP1591-CR
¶33 Young argues that his trial counsel provided ineffective assistance
by advising Young to enter the pleas and by not adequately explaining the
elements of the crimes and the maximum penalties. We address and reject
Young’s arguments in turn.
1. Improperly advising Young to enter the pleas
¶34 In Young’s postconviction motion, Young alleges that he told his
trial counsel before the plea hearing that he wanted new representation, and that
counsel told him that he could seek new representation only after entering a plea.
Young alleges that he then entered his pleas with the understanding that he could
withdraw them after receiving a new attorney, but that the circuit court denied the
plea withdrawal motion filed by replacement counsel. Thus, Young alleges, trial
counsel improperly advised him to enter the pleas.
¶35 Young testified as to these allegations in his presentencing plea
withdrawal motion, and after an evidentiary hearing on that motion the circuit
court rejected Young’s testimony as not credible. Trial counsel testified that:
counsel did not coerce Young into entering a plea; counsel told Young that no one
could force him to enter a plea and he did not have to if he did not want to; Young
“wanted to delay” entering a plea and they discussed Young’s concerns and “he
ultimately decided to go ahead and enter the plea”; if Young had not wanted to
proceed with the plea hearing they would not have proceeded; and Young
“certainly knew what was happening” with respect to the plea hearing. The court
found counsel’s testimony credible. Given the court’s findings of credibility and
fact at the presentencing plea withdrawal motion hearing, Young fails to show that
trial counsel was deficient in advising him to enter the pleas and not withdrawing
before the plea hearing.
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No. 2018AP1591-CR
2. Failure to adequately explain elements and maximum penalties
¶36 Young also alleges in his postconviction motion that his trial counsel
failed to “adequately” explain the elements and maximum penalties of the crimes
and that he did not have enough time to ask trial counsel his questions about the
elements and maximum penalties. However, Young does not identify what
unanswered questions he had or what more trial counsel should have told him
about the elements and maximum penalties. Thus, his motion fails to allege
sufficient facts to “allow the reviewing court to meaningfully assess [his] claim.”
See Bentley, 201 Wis. 2d at 314.
¶37 Moreover, the record refutes Young’s allegations. At the
presentencing plea withdrawal motion hearing, Young testified generally that he
did not understand what was going on in court but did not testify as to what
specifically he did not understand, or that trial counsel failed to explain the
elements and maximum penalties of the crimes to him. Young also testified that
he never read or signed the plea questionnaire that contained his signature. Trial
counsel testified that Young did not tell him that Young did not understand any
aspect of the plea proceedings, and that they met the day of the plea hearing for at
least an hour discussing Young’s concerns. The circuit court found that trial
counsel’s testimony was more credible than Young’s, that Young had met with
trial counsel at least five or six times before the plea hearing, that Young signed
the plea questionnaire as did counsel, and that Young understood the proceedings.
The court also noted that Young had told the court at the plea hearing that his plea
was voluntary and knowing after discussing it with trial counsel. The circuit court
found that “nothing interfered with [Young] entering the plea.”
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No. 2018AP1591-CR
¶38 In sum, Young fails to show that he is entitled to a hearing on his
claims of ineffective assistance of trial counsel.
III. Ineffective Assistance of Replacement Counsel
¶39 Finally, Young argues that replacement counsel provided ineffective
assistance by failing to raise all of the claims addressed above in the presentencing
plea withdrawal motion, when the claims would have been reviewed under a more
lenient standard. This allegation fails for two reasons. First, replacement counsel
did raise Young’s challenge to the plea colloquy as to the elements of the crimes,
as well as Young’s claim of ineffective assistance of trial counsel as to improperly
coercing him to enter his pleas. Second, we have explained above why Young’s
remaining claims—his claim of the lack of a factual basis for the plea, his
challenge to the plea colloquy as to the maximum penalties, and his claim of
ineffectiveness of trial counsel as to counsel’s explanation of the elements and
maximum penalties—lack merit. Counsel is not deficient for failing to present
claims that we have determined to lack merit. See State v. Wheat, 2002 WI App
153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (“Failure to raise an issue of law is
not deficient performance if the legal issue is later determined to be without
merit.”).
¶40 Accordingly, Young fails to show that he is entitled to a hearing on
his claim of ineffective assistance of replacement counsel.
CONCLUSION
¶41 For the reasons stated, we affirm.
By the Court.—Judgment and order affirmed.
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No. 2018AP1591-CR
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
17