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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.
September 28, 2000
                                                                                                                        A  party  may  file  with  the  Supreme  Court  a
                                                                                                                        petition  to  review  an  adverse  decision  by  the
                                                                                              Cornelia G. Clark
                                                                                                                        Court of Appeals.   See WIS. STAT. § 808.10 and
                                                                                              Clerk, Court of Appeals
                                                                                                                        RULE 809.62.
                                                                                              of Wisconsin
No.                                                                                           99-2962
STATE OF WISCONSIN                                                                            IN COURT OF APPEALS
                                                                                              DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
HERMAN L. RICHARDSON,
DEFENDANT-APPELLANT.
APPEAL  from  an  order  of  the  circuit  court  for  Sauk  County:
JAMES EVENSON, Judge.  Affirmed.
Before Eich, Roggensack and Dillon, JJ.1
1  Circuit Judge Daniel T. Dillon is sitting by special assignment pursuant to the Judicial
Exchange Program.




No. 99-2962
¶1                                                                                           PER CURIAM.    Herman Richardson appeals from an order denying
his postconviction motion brought under WIS. STAT. § 974.06 (1997-98).2   The
issue is whether his trial counsel was ineffective in advising Richardson about the
risks of testifying at his trial.   We conclude counsel was not ineffective.
¶2                                                                                           Richardson was convicted after a jury trial of two types of sexual
assault,  with  both  convictions  arising  from  the  same  act.     To  protect  the
confidentiality of the victim, we will not describe the facts of the crime in this
opinion.
¶3                                                                                           Before trial, Richardson’s counsel moved in limine to block the State
from offering certain “other acts” evidence, which we also will not describe.   The
prosecutor conceded that the evidence did not meet one of the exceptions for
admissibility under WIS. STAT. § 904.04(2).   However, the prosecutor further said
that this was true only as to the State’s case-in-chief, because rebuttal “may be
another issue” and  “we have to see how that postures itself.”    The trial court
granted the motion as to the case-in-chief, but added:                                       “If Mr. Richardson does
testify and you wish to proceed into that area, you will have to request permission
first and then, depending upon what that testimony is, you can again request the
Court to permit any further inquiry.”   Richardson did not testify.
¶4                                                                                           At the hearing on Richardson’s current postconviction motion, trial
counsel and Richardson described their conversations about whether Richardson
should  testify  at  trial.    Trial  counsel  had  been  concerned  that  the  other-acts
2  All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
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No. 99-2962
evidence  might  be  admitted  if  Richardson  testified  and  that  Richardson’s
testimony would not add substantially to the favorable evidence already presented.
¶5                                                                                            On appeal, Richardson argues that his trial counsel was ineffective
for advising him that it would be better not to testify.   To establish ineffective
assistance  of  counsel,  a  defendant  must  show  that  counsel’s  performance  was
deficient and  that such performance  prejudiced his defense.    See Strickland v.
Washington,  466 U.S.  668,  687  (1984).    The test for deficient performance is
whether  counsel’s  conduct  was  within  the  range  of  competence  demanded  of
attorneys  in  criminal  cases.     See  id.    This  test  is  an  objective  standard  of
reasonableness.    See id. at  688.    We need not address both components of the
analysis if the defendant makes an inadequate showing on one.   See id. at 697.   We
affirm the trial court’s findings of fact unless they are clearly erroneous, but the
determination of deficient performance and prejudice are questions of law that we
review without deference to the trial court.   See State v. Pitsch, 124 Wis. 2d 628,
633-34, 369 N.W.2d 711 (1985).
¶6                                                                                            Specifically,   Richardson’s   argument   is   that   his   attorney’s
performance was deficient because his attorney was wrong in believing that the
other-acts evidence might be admitted if he testified.   Richardson argues that the
prohibition in WIS. STAT. § 904.04(2) on other-acts evidence would still apply,
even in rebuttal to his testimony.   He also asserts that the evidence would not be
admissible  as  extrinsic  evidence  to  attack  his  credibility.    See  WIS.  STAT.
§ 906.08(2).   To show prejudice, Richardson argues that if his attorney’s advice
had not been deficient, he would have testified and there is a reasonable possibility
his testimony would have prevented the conviction.
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No. 99-2962
¶7                                                                                       In  response,  the  State  suggests  several  ways  that  the  other-acts
evidence might have been admitted in rebuttal, depending on what Richardson’s
testimony would have been.   We again decline to describe those possibilities, but
they go to the substance of the case or to evidence of Richardson’s character and
not  merely  to  Richardson’s  credibility.    The  State  argues  that  under  these
circumstances it was reasonable for counsel to believe there was some risk that the
other-acts evidence could be admitted and that it was reasonable to so advise
Richardson.
¶8                                                                                       In his reply brief, Richardson does not directly dispute the State’s
possible scenarios as to how the other-acts evidence might have been admitted.
Instead, he replies that:                                                                (1) counsel did not actually make a reasonable decision
because counsel thought that the very act of testifying would necessarily open the
door, and (2) counsel did not actually base his advice on any of those possible
scenarios.
¶9                                                                                       We  conclude  that  counsel’s  advice  was  reasonable.     It  was
reasonable to believe there was some risk that the other-acts evidence might be
admitted.    The  State’s  suggested  scenarios  are  ones  in  which  the  other-acts
evidence would probably be admissible, especially in light of what Richardson
said that his testimony at trial would have  been.    Richardson argues that his
attorney did not make a reasonable decision because he erroneously thought that if
Richardson testified, then by that act alone the evidence would be admissible.   We
reject this argument for two reasons.   First, Richardson provides no citation to the
record to demonstrate  that counsel believed the other-acts evidence would be
admissible  simply  because  Richardson  testified.                                      We  have  reviewed  the
postconviction  hearing  transcript,  and  we  find  no  testimony  by  counsel  or
Richardson  that  supports  Richardson’s  current  description  of  his  counsel’s
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No. 99-2962
opinion.   In fact, counsel testified that he told Richardson the evidence would not
be admissible “unless he made some statement that would open the door to that
potentially coming  in.”    Richardson testified  that counsel told  him that if  he
testified there “would be a great possibility” for the evidence to be used.
¶10    More importantly, however, it is immaterial what particular thought
process Richardson’s counsel used to arrive at his advice.   As we stated above, the
test  is  an  objective  one,  of  what  a  reasonable  lawyer  would  do  under  the
circumstances.   Even if counsel did hold an erroneous view, or merely flipped a
coin, the actual advice given to Richardson was advice that a reasonable lawyer
could have given under the circumstances.
¶11    Richardson also argues that his attorney did not base his advice on
any  of  the  State’s  possible  scenarios.    This  is  essentially  a  variation  on  the
preceding argument.   Again, counsel’s actual thought process is not relevant.   And
even if it were, counsel was never asked at the postconviction hearing to provide a
detailed legal explanation for his belief that the other-acts evidence might have
been admitted.   As a result, even if counsel’s mental process were relevant, we
have no record of whether counsel did indeed consider the possibilities the State
suggests.
¶12    In addition to making his argument in terms of ineffective assistance
of counsel, Richardson also frames the issue in terms of whether his waiver of his
Fifth Amendment right to testify was knowing and voluntary.   He argues that it
was  not  because  of  his  attorney’s  erroneous  advice  about  whether  he  should
testify.   We have already concluded that his attorney’s advice complied with the
standards established to determine sufficient performance for Sixth Amendment
purposes.   Richardson does not argue that we should apply any different standard
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No. 99-2962
to determine whether his attorney’s advice was sufficiently flawed to render the
waiver of his right to testify involuntary.   Accordingly, we consider this issue to be
disposed of by our earlier analysis.
By the Court.—Order affirmed.
                                                                                          This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                 (b)5.
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