State v. Daimon Von Jackson, Jr. ( 2023 )

2023 WI 37SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2383-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Daimon Von Jackson, Jr.,
Defendant-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 400 Wis. 2d 542, 970 N.W.2d 571(2022 – unpublished)
OPINION FILED: May 12, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 29, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Racine
JUDGE: Mark F. Nielsen & Faye M. Flancher
JUSTICES:
Per curiam. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion, in which ZIEGLER, C.J., joined and in which HAGEDORN,
J., joined except for ¶3. ANN WALSH BRADLEY, J., filed a
dissenting opinion, in which DALLET, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
filed by Melinda A. Swartz and the Law Office of Melinda Swartz,
LLC, Milwaukee. There was an oral argument by Melinda A. Swartz.
For the plaintiff-respondent, there was a brief filed by
Lisa E.F. Kumfer, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Lisa E.F. Kumfer, assistant attorney general.
2023 WI 37NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP2383-CR
(L.C. No. 2014CF1721)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. MAY 12, 2023
Daimon Von Jackson, Jr., Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. Daimon Von Jackson, Jr. petitioned for
review of a court of appeals decision that affirmed a circuit
court order denying his postconviction motion, in which he
argued, among other things, that his trial counsel was
ineffective. State v. Jackson, No. 2019AP2383-CR, unpublished
slip op. (Wis. Ct. App. Dec. 29, 2021). After reviewing the
record and the briefs, and after hearing oral arguments, we
conclude that this matter should be dismissed as improvidently
granted.
No. 2019AP2383-CR
By the Court.——The review of the decision of the court of
appeals is dismissed as improvidently granted.
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No. 2019AP2383-CR.rgb
¶2 REBECCA GRASSL BRADLEY, J. (concurring). I agree
with this court's decision to dismiss the petition for review as
improvidently granted. I write in concurrence only to respond
to the dissent, which insinuates that by dismissing the
petition, this court maintains a miscarriage of justice. Not
so. The dissent also inaccurately portrays this court's recent
history regarding dismissed petitions.
¶3 Lobbing an alarming accusation, the dissent declares:
"[w]ithout a decision in this case, we leave a conviction intact
without examining the circumstances that led to what a
[dissenting] judge of the court of appeals referred to as a
failure of both the court and the entire justice system."
Dissent, ¶24 (citing State v. Jackson, No. 2019AP2383-CR,
unpublished slip op., ¶88 (Reilly, J., dissenting)). This
statement underrates the work of the three-judge panel that
heard the appeal. After a thorough review, two of those three
judges voted to affirm the decision made by the circuit court
judge. As noted in the majority opinion, the dissenting judge
largely raised issues neither presented to the circuit court nor
argued on appeal. Jackson, No. 2019AP2383-CR, ¶50 n.23
(majority op.). The majority criticized the dissenting judge's
"advocacy," reiterating the uncontroversial axiom that the court
of appeals is not a defense attorney. Id. Damion Von Jackson's
right to an appeal was fully satisfied when the court of appeals
addressed the arguments he actually made. Just because a single
judge at one point in this case's procedural history "perceived"
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a "failure" of the justice system does not entitle Jackson to
further review. See dissent, ¶24.
¶4 The dissent also makes the unsupported assertion that
"[a]n examination of recent dismissals as improvidently granted
reveals a largely inconsistent practice with regard to whether
this court provides any explanation for its dismissals." Id.,
¶15. The dissent's own examples illustrate its error. The
dissent states:
For examples of dismissals without explanation,
see Slamka[ v. Gen. Heating and Air Conditioning
Inc., 2022 WI 68], 404 Wis. 2d 586[, 980 N.W.2d 957];
Cobb v. King, 2022 WI 59, 403 Wis. 2d 198, 976
N.W.2d 410; Fond du Lac County v. S.N.W., 2021 WI 41,
396 Wis. 2d 773, 958 N.W.2d 530; State v. Kloss, 2020
WI 26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha
County v. J.J.H., 2020 WI 22, 390 Wis. 2d 531, 939
N.W.2d 49; Halbman v. Barrock, 2017 WI 91, 378
Wis. 2d 17, 902 N.W.2d 248.
In contrast, for examples of explanations
provided by the court for a dismissal as improvidently
granted, see Smith v. Anderson, 2017 WI 43, 374
Wis. 2d 715, 893 N.W.2d 790; Michael J. Waldvogel
Trucking, LLC v. LIRC, 2012 WI 28, 339 Wis. 2d 248,
810 N.W.2d 811; Nedvidek v. Kuipers, 2009 WI 44, 317
Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI
35, 317 Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski,
2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v.
Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.
Id., ¶15 n.2. The year in each citation is telling. The
dissent cites five cases from the most recent five years in
which no explanation was offered. The dissent's sampling does
not include a sixth case in which this court did the same during
this period. See State v. Lee, 2022 WI 32, ¶1, 401 Wis. 2d 593,
973 N.W.2d 764 (per curiam). In contrast, the dissent cites a
single case from the past decade containing an explanation.
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Notably, two justices did not participate in that case, which
may explain why it is an outlier.1 Smith, 374 Wis. 2d 715, ¶10.
The remainder of the cases cited in which this court offered an
explanation are from more than a decade ago, and one case is
from 2007——about 16 years ago.
¶5 Far from establishing a "largely inconsistent
practice," the dissent's thorough examination of these "recent"
examples establishes a no-explanation trend. Dissent, ¶15. The
dissent quibbles over the definition of "recent," characterizing
my concept of what is recent as too limited. Id., ¶15 n.1. The
irony, of course, is that this writing simply applies the very
definition of "recent" the dissent uses. The dissent's "recent"
examples show the opposite of the point the dissent is trying to
make. The dissent may lament the no-explanation trend, but
calling the court's practice "inconsistent" flies in the face of
the facts.
¶6 This court's recent practice is in accord with the
traditional approach. When courts of last resort dismiss a
petition, they customarily do not explain why, although courts
have at times exercised their discretion to make exceptions to
this practice on a case by case basis. 5 Am. Jur. 2d Appellate
Review § 347 (updated Feb. 2023) ("Ordinarily, no opinion
1 As I have previously explained, "[c]itizens of the state
deserve to have the entire supreme court decide all cases unless
extreme circumstances require otherwise." Wis. Judicial Comm'n
v. Woldt, 2021 WI 73, ¶56 n.2, 398 Wis. 2d 482, 961 N.W.2d 854(Rebecca Grassl Bradley, J., concurring/dissenting) (quoting
State v. Herrmann, 2015 WI 84, ¶154, 364 Wis. 2d 336, 867
N.W.2d 772 (Ziegler, J., concurring)).
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accompanies the dismissal of a . . . [petition] as improvidently
granted. However, the Court may issue an opinion per curiam
defending the dismissal, especially where the Court wants to
refute the arguments of some justices dissenting from the
dismissal."); see also Rice v. Sioux City Mem'l Park Cemetery,
349 U.S. 70, 77 (1955) ("We have taken this opportunity to
explain . . . [why the petition is being dismissed], when
normally, for obvious reasons in view of our volume of business,
no opinion accompanies dismissal of a writ as improvidently
granted[.]"). The United States Supreme Court, for example,
typically dismisses a petition in a mere one-sentence order.
E.g., In re Grand Jury, 598 U.S. __, 143 S. Ct. 543 (2023) (per
curiam). The dissent does not suggest this case warrants an
exception to our practice; it argues explanations should
accompany all dismissals.
¶7 In decrying our custom, the dissent examines its
possible underlying rationales only in passing and only in
response to the concerns raised in this writing. As the
proponent of discarding a customary practice, the dissent bears
the burden of examining why the practice exists and then
explaining why it should be rejected:
In the matter of reforming things, as distinct from
deforming them, there is one plain and simple
principle; a principle which will probably be called a
paradox. There exists in such a case a certain
institution or law; let us say, for the sake of
simplicity, a fence or gate erected across a road.
The more modern type of reformer goes gaily up to it
and says, "I don't see the use of this; let us clear
it away." To which the more intelligent type of
reformer will do well to answer: "If you don't see
the use of it, I certainly won't let you clear it
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No. 2019AP2383-CR.rgb
away. Go away and think. Then, when you can come
back and tell me that you do see the use of it, I may
allow you to destroy it."
G.K. Chesterton, The Thing: Why I am Catholic 27 (Dodd, Mead
and Co. 1930); cf. Bartlett v. Evers, 2020 WI 68, ¶203, 393
Wis. 2d 172, 945 N.W.2d 685 (Kelly, J., concurring/dissenting)
(explaining the purpose of precedent is "[t]o remind us that
those who came before were diligent and capable in their work,
and that in doubtful matters it is best to leave settled things
settled unless there is a clear and present need to do
otherwise").
¶8 Perhaps the tradition should be discarded; however, a
cursory dissent in which "recent" history is misused to support
a preconceived outcome is insufficient to justify that
conclusion. The tradition may serve many purposes, including
the preservation of limited judicial resources. See Rice, 349
U.S. at 77. For example, if this court determines the lower
court reached the correct outcome, further review can be a waste
of time. Lee, 401 Wis. 2d 593, ¶2 (Rebecca Grassl Bradley, J.,
concurring). Under that circumstance, this court may conclude
further review would not only waste judicial resources but also
cause an unwarranted delay in a case's final resolution.
Additionally, the tradition may stem from the principle of
judicial restraint. If this court declines to decide an issue,
explaining the avoidance could inadvertently create persuasive
authority on the issue, thereby nonsensically undermining the
very decision not to decide it.
¶9 The dissent attempts to dispel these concerns by
suggesting a single-sentence order dismissing the petition
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No. 2019AP2383-CR.rgb
because its resolution "will not lead to any further development
of the law[.]" Dissent, ¶15 n.1 (quoting Slamka, 404
Wis. 2d 586, ¶5 (Ann Walsh Bradley, J., concurring)). The
dissent claims this minimal explanation would neither consume
judicial resources nor decide any issue but would foster
transparency. This proposal presupposes a majority of this
court in a particular case would agree on why a petition should
be dismissed. Often, no such majority exists. If two or three
justices dissent from the dismissal, forming a majority on
rationale may be challenging. Some justices may disagree with
the majority's reasoning, leading to separate writings, which in
turn may prompt other justices to write separately in response.
A broadly-worded order without a specific reason for dismissal
facilitates joinder. The issue of judicial resources is more
complicated than the dissent implies.
¶10 The dissent does not recognize that merely declaring a
petition lacks law-developing potential is itself a holding with
law-developing potential. Even if not binding, it hints this
court would not distinguish or overrule an existing precedent.
Perhaps such a dismissal should not be read that way, but this
court's decisions are often misconstrued. Cf. Trump v. Evers,
No. 2020AP1971-OA, unpublished order, 4 (Wis. Dec. 3, 2020)
(Roggensack, C.J., dissenting) ("I also am concerned that the
public will misunderstand what our denial of the petition means.
Occasionally, members of the public seem to believe that a
denial of . . . a case signals that the petition's allegations
are either false or not serious. Nothing could be further from
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No. 2019AP2383-CR.rgb
the truth."); O'Bright v. Lynch, No. 2020AP1761-OA, unpublished
order, 2 (Wis. Oct. 29, 2020) (Roggensack, C.J., concurring) ("I
write separately to clarify that our denial of the petition for
an original action should not be construed as an endorsement to
disregard Wisconsinites' fundamental right to vote.").
¶11 Finally, it is unclear whether the dissent's proposal
would actually give the public more than an order simply
declaring the case dismissed. Without some explanation as to
why the court's review of the case would not develop any law,
the conclusory order recommended by the dissent would not
promote transparency.2
¶12 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence and that Justice BRIAN
HAGEDORN joins this concurrence except for ¶3.
2The dissent also states, "[this court] dismisses a case
that it at one point in time thought worthy of our review,"
castigating this court's supposed "about-face." Dissent, ¶15.
The dissent does not acknowledge that a petition for review
needs only three votes (less than a majority of the full court)
to be granted. Wis. S. Ct. IOP III.B.1 (Feb. 28, 2023).
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¶13 ANN WALSH BRADLEY, J. (dissenting). I write
separately for two reasons. First, as I have stated previously,
I believe that this court should explain to the litigants and
the public the reason for a dismissal as improvidently granted.
At the very least, the court should give the litigants a
reasoned justification for leaving the questions unanswered
given that they have expended substantial effort and resources
to argue this case before us.
¶14 Second, in my view, the issues in this case are worthy
of this court's review. Although the degree of law development
is limited, Judge Reilly's dissent in the court of appeals
raises substantial questions about whether Daimon Von Jackson
received constitutionally adequate representation and even
refers to this case as a "fail[ure]" of the "entire justice
system." State v. Jackson, No. 2019AP2383-CR, unpublished slip
op., ¶88 (Wis. Ct. App. Dec. 29, 2021) (Reilly, J., dissenting).
Because I believe we should address the issues presented, I
respectfully dissent.
I
¶15 The court disposes of this case as improvidently
granted in a terse, two-sentence per curiam opinion. It
dismisses a case that it at one point in time thought worthy of
our review, offering no insight for either these litigants or
future litigants as to the court's rationale for its about-face.
An examination of recent dismissals as improvidently granted
1
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reveals a largely inconsistent practice1 with regard to whether
this court provides any explanation for its dismissal.2
¶16 The result of this inconsistent practice is a lack of
guidance for potential litigants and the public, as well as an
1 The concurrence asserts that there has been the emergence
of a "no-explanation trend" over the past five years such that
it should now be the accepted practice of the court.
Concurrence, ¶5. Regardless of whether an examination of
"recent" history encompasses a shorter or longer trajectory, the
court five years ago (without explanation) stopped offering
explanations. Such a change does not transform an alleged
"custom" into an entrenched practice entitled to the patina of
precedential weight. See id., ¶7.
Further, the rationales offered by the concurrence for
adhering to this purported new "tradition" of offering no
explanation are easily dispatched. The preservation of scarce
judicial resources and the inadvertent resolution of an issue
are certainly worthy of consideration. But a single sentence
stating that a "review should be deemed improvidently granted
because the issue for which we took this case will not lead to
any further development of the law," as I have offered in the
past, neither consumes a great deal of resources nor decides any
issue in controversy. See Slamka v. Gen. Heating and Air
Conditioning Inc., 2022 WI 68, ¶5, 404 Wis. 2d 586, 980
N.W.2d 957 (Ann Walsh Bradley, J., concurring).
2 For examples of dismissals without explanation, see
Slamka, 404 Wis. 2d 586; Cobb v. King, 2022 WI 59, 403
Wis. 2d 198, 976 N.W.2d 410; Fond du Lac County v. S.N.W., 2021
WI 41, 396 Wis. 2d 773, 958 N.W.2d 530; State v. Kloss, 2020 WI
26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha County v. J.J.H.,
2020 WI 22, 390 Wis. 2d 531, 939 N.W.2d 49; Halbman v. Barrock,
2017 WI 91, 378 Wis. 2d 17, 902 N.W.2d 248.
In contrast, for examples of explanations provided by the
court for a dismissal as improvidently granted, see Smith v.
Anderson, 2017 WI 43, 374 Wis. 2d 715, 893 N.W.2d 790; Michael
J. Waldvogel Trucking, LLC v. LIRC, 2012 WI 28, 339 Wis. 2d 248,
810 N.W.2d 811; Nedvidek v. Kuipers, 2009 WI 44, 317
Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 35, 317
Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 2009 WI 22, 316
Wis. 2d 1, 762 N.W.2d 104; State v. Townsend, 2007 WI 31, 299
Wis. 2d 672, 728 N.W.2d 342.
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No. 2019AP2383-CR.awb
effective negation of the numerous hours of work and sums of
money spent seeking a decision on the merits. Because there is
a strong public policy rationale behind providing reasons for a
dismissal as improvidently granted, the court's general practice
should be to provide an explanation for such a dismissal. Its
"we don't have to tell you, so we won't" approach serves only to
undermine transparency and accountability, while compounding the
alleged systemic failures in this case.
II
¶17 I not only take issue with the majority's lack of
explanation of its decision, but I also disagree with the
decision itself. The issues raised in this case revolve around
whether Jackson's fourth trial counsel, Attorney Scott Anderson,
was constitutionally ineffective.3 Jackson asserts that Attorney
Anderson was ineffective for failing to communicate a plea offer
to him, and for failing to meet with him as trial approached.
Jackson also contends that the circuit court should have
followed up to ensure that his attorney had met with him.
¶18 Jackson pleaded guilty to second-degree reckless
homicide as a result of an incident where the victim was killed
during a robbery. The plea was not as party to a crime (PTAC).
See Wis. Stat. § 939.05 (2013-14).4 This piece of information is
3 See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(setting forth that a defendant must demonstrate both deficient
performance and prejudice to be successful on a claim of
ineffective assistance).
4 All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
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No. 2019AP2383-CR.awb
important for two reasons. First, a previous plea offer, which
the prosecutor said would remain open until the date of trial,
included a plea as PTAC. Second, Jackson has maintained
throughout the case that he was not the shooter, but was merely
a lookout for the robbery that resulted in the shooting.
Jackson argues that he would have been treated more favorably at
sentencing if he pleaded as PTAC, which would have allowed him
to credibly assert that he was the lookout rather than the
shooter.
¶19 The record contains evidence supporting the claim that
Jackson was the lookout. Most compelling is that an eyewitness
described the clothes the two assailants were wearing.
Surveillance video from a casino shows that later on the day of
the homicide, Jackson and two other men were gambling. The two
other men were wearing the clothes the eyewitness described, and
Jackson was not. Further, a co-defendant's fingerprints were
found on the gun magazine.
¶20 Attorney Anderson certainly made some mistakes, and
although the State did not agree that Anderson's representation
was constitutionally deficient, it conceded at oral argument
that mistakes were made. This court apparently agreed with such
an assessment when it imposed discipline on Anderson for
violations of the rules of professional conduct in the course of
his representation of Jackson. See Matter of Disciplinary
Proceedings Against Anderson, 2020 WI 82, 394 Wis. 2d 190, 950
N.W.2d 191.
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¶21 Although our precedent indicates that a violation of
the rules of professional conduct does not necessarily mean that
counsel was constitutionally ineffective, State v. Cooper, 2019
WI 73, ¶¶21-22, 387 Wis. 2d 439, 929 Wis. 2d 192, Judge Reilly's
dissent in the court of appeals gives me enough pause to
conclude that we should review the issues presented in this
case. The sheer number and magnitude of the alleged errors
contribute to a lack of confidence in the outcome that should be
addressed by this court.
¶22 For example, Judge Reilly concluded that Jackson was
"coerced into becoming the 'shooter'" due to constitutionally
ineffective representation, the State's breach of a pretrial
offer for Jackson to plead as PTAC, and the circuit court's
defective plea colloquy. Jackson, No. 2019AP2383-CR, at ¶62
(Reilly, J., dissenting). The mistakes Judge Reilly observed
were recounted in a litany of errors:
 "A 'reasonably competent attorney' would have
corrected the circuit court at both the final pretrial
hearing and the trial/plea date that Jackson was not
facing forty-six years in prison on an armed robbery
charge if he went to trial." Id., ¶63 (Reilly, J.,
dissenting) (footnote omitted).
 "A reasonably competent attorney would have challenged
the State's breach of its plea offer." Id.
 "A reasonably competent attorney would have understood
that a second-degree reckless homicide charge is
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No. 2019AP2383-CR.awb
materially different from a charge of second-degree
reckless homicide as a party to the crime." Id.
 "A reasonably competent attorney would have provided
his client with a pretrial offer and discussed the
offer with his client prior to the day of trial." Id.
 "A reasonably competent attorney would have met with
and prepared both his client and witnesses prior to
the trial date." Id.
 "A reasonably competent attorney would have procured,
produced, and argued evidence that Jackson was not the
'shooter' but was blocks away when Bobby Henderson
shot Carter." Id.
¶23 In Judge Reilly's view, the "objective
facts . . . show that Jackson was the lookout rather than the
shooter." Id., ¶64. It is true that that there is no
difference in the level of felony or permissible sentencing
range for a conviction as a principal as opposed to a conviction
as PTAC. See Wis. Stat. §§ 939.05(2), 940.06. But "[f]or
anyone to suggest that a judge at sentencing would treat a cold-
blooded killer the same as a 'lookout' is sorely lacking in the
understanding of what a judge at sentencing is tasked with
doing." Jackson, No. 2019AP2383-CR, at ¶81 (Reilly, J.,
dissenting).
¶24 Jackson seeks from this court a remand to the circuit
court for additional fact-finding. This court should decide
whether he is entitled to this remedy. Without a decision in
this case, we leave a conviction intact without examining the
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No. 2019AP2383-CR.awb
circumstances that led to what a judge of the court of appeals
referred to as a failure of both the court and the entire
justice system. See id., ¶88 (Reilly, J., dissenting). Such a
perceived "failure" should surely be worthy of our review.
¶25 For the foregoing reasons, I respectfully dissent.
¶26 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
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1