Evidentiary Hearing Required in Wisconsin Sex Crimes Case

By Reddin & Singer

Money and Handcuffs

In State v. Sholar, a Wisconsin man was charged with pandering, trafficking a minor, soliciting a child for prostitution, human trafficking, and sexual assault. During a jury trial, a 17-year-old girl testified that she worked for the defendant as a prostitute, a 21-year-old woman offered testimony stating she was forced to have sex with the man, and the state offered evidence the defendant utilized a website to post advertisements for sexual services. In addition, the jury was provided with copies of numerous text messages and allowed to listen to a recorded interrogation in which the defendant stated he was previously imprisoned on three occasions and was recently acquitted on an armed robbery charge. Ultimately, the jury returned a guilty verdict on all charges, and the man was sentenced to 30 years of imprisonment followed by 15 years of extended supervision.

Following his conviction, the man filed a post-conviction motion claiming his trial attorney should have objected to the recorded interrogation being shown to the jury and to the admission of about 1,400 prejudicial text messages. The man also argued the trial court committed error when it refused his demand for a mistrial. After the lower court denied the man’s motion without an evidentiary hearing, the defendant filed an appeal with the Court of Appeals of Wisconsin, District I.

First, the appellate court addressed the man’s ineffective assistance of counsel claims. According to the Wisconsin court, whether or not an attorney provided his or her client with effective “assistance is a mixed question of fact and law.” The court added that it would uphold the lower court’s findings absent clear error.

Next, the Court of Appeals stated the defendant was required to demonstrate that his attorney’s deficient assistance somehow prejudiced him in order to prevail on his claim. In order to show this, the court said the defendant must point to conduct that was outside of the generally accepted range of competent legal assistance. Additionally, the appellate court stated prejudice may occur when there is a reasonable probability that the outcome of a legal proceeding would have been different absent counsel’s error. The court then said it was not permitted to review an ineffective assistance of counsel claim when a defendant’s motion merited relief on its face unless the attorney whose work was challenged participated in a post-conviction evidentiary hearing.

After finding that the defendant failed to adequately allege he was prejudiced by the interrogation tape, the Court of Appeals turned to the potential prejudice caused by the admission of nearly 1,400 text messages into evidence. According to the man, at least 100 messages were hearsay, irrelevant, or prejudicial, and there was no justifiable reason for his counsel to fail to object to their admission. In addition, the defendant claimed the messages were central to jury deliberations because jurors requested to view the text messages in their entirety. Although the circuit court ruled that the defendant failed to show he was prejudiced by the messages, the appellate court disagreed. Since the man was entitled to a post-conviction evidentiary hearing regarding the text message evidence offered to the jury, the Court of Appeals of Wisconsin, District I reversed and remanded the case for further consideration of the defendant’s ineffective assistance of counsel claim.

If you were accused of committing a sex crime in Wisconsin, you should contact the law offices of Reddin & Singer, LLP through our website or give us a call today at (414) 271-6400. Our experienced Milwaukee criminal attorneys may also be reached using our phone number (414) 271-6400.

Additional Resources

State v. Sholar, Wis: Court of Appeals, 1st Dist. 2015

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