Trial counsel is not ineffective if he or she does not bring a motion that would have failed. State v. Simpson, 185 Wis. 2d 772, 784 519 N.W. 2d 662 (Ct. App. 1994). The record conclusively demonstrates that Verbanac's complaint that counsel failed to seek suppression has no merit.
Again, we remind the trial court to engage in an on-the-record colloquy with a defendant regarding the right to testify. State v. Simpson, 185 Wis.2d 772, 779, 519 N.W.2d 662, 664 (Ct.App. 1994); see alsoState v.Wilson, 179 Wis.2d 660, 672 n. 3, 508 N.W.2d 44, 48 n. 3 (Ct. App. 1993), cert. denied, 115 S. Ct. 100 (1994). A defendant's right to testify is fundamental.
It is well established that if the unfiled motion would have been unsuccessful, trial counsel is not deficient for not filing it. See State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994). The due process hearing is often referred to as a Becker hearing.
A defendant's right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis.2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify.
¶ 7. A defendant's right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis.2d 772, 778, 519 N.W.2d 662 (Ct.App. 1994). The right, however, may be waived.
Although Wilson states that the record must show that the defendant knowingly and voluntarily waived the right to testify, it does not require that the court obtain an on-the-record waiver of the defendant's right to testify during trial. In State v. Simpson, 185 Wis.2d 772, 519 N.W.2d 662 (Ct.App. 1994), we considered the totality of the record, including the transcript of the postconviction hearing, in determining whether the defendant appropriately waived his right to testify. Seeid. at 779-80, 519 N.W.2d at 664.
Consistent with the U.S. Supreme Court's decision in Rock, the court of appeals has concluded that a "defendant's right to testify is fundamental in nature." State v. Simpson, 185 Wis.2d 772, 778, 519 N.W.2d 662 (Ct.App. 1994) (emphasis added); see also State v. Wilson, 179 Wis.2d 660, 670, 508 N.W.2d 44 (Ct.App. 1993). ¶ 38.
Here, however, we conclude Hartleben has failed to prove either deficient performance or prejudice precisely because he has failed to show any implied bias in connection with the PSI, and an objection on that basis therefore would have been properly denied. See State v. Berggren, 2009 WI App 82, ¶21, 320 Wis. 2d 209, 769 N.W.2d 110 (counsel does not perform deficiently by failing to raise a legal challenge that would have been properly denied); State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994) (defendant is not prejudiced by counsel's failure to make a motion that would have been denied). Thus, even though Hartleben has forfeited his right to direct appellate review of his implied bias claim, under the circumstances, our ineffective assistance analysis amounts to a direct review of that claim.
Counsel is not deficient for failing to file a motion that would not have been granted. See State v. Simpson, 185 Wis.2d 772, 784, 519 N.W.2d 662 (Ct.App.1994).
Because a suppression motion related to the memory stick would have been appropriately denied, Berggren's trial counsel was not ineffective for not making one. See State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662 (Ct. App. 1994) (an attorney is not ineffective for not making a motion that would have been denied.). Given that counsel's performance in this regard was not deficient, we do not address the prejudice prong.