State v. Michael Nelson, 2021AP1133-CR, 3/9/22, District 2 (1-judge opinion, ineligible for publication); case activity
Nelson, who values his right to bear arms, pled guilty to several crimes, including disorderly conduct and domestic violence. As a condition of his probation, he was barred from possessing firearms. Postconviction, he claimed that his trial lawyer incorrectly advised him that “pleading to disorderly conduct could result in a temporary rather than permanent loss of his gun rights” and that the trial court erred in denying him a hearing on his ineffective assistance of counsel claim.
A circuit court is not required to hold a hearing on an ineffective assistance of counsel claim. It may deny a hearing if the defendant fails to allege sufficient facts to entitle him to relief or if the record conclusively establishes that the defendant is not entitled to relief. State v. Allen, 2004 WI 106, ¶19, 274 Wis. 2d 568, 682 N.W.2d 433.
The circuit court denied a hearing on Nelson’s claim because his lawyer’s advice was correct. His lawyer was uncertain whether Nelson’s loss of gun rights would be temporary or permanent because the law is unsettled. According to the court of appeals, it is not certain that a conviction for disorderly conduct in the context of domestic violence will result in a permanent denial of the right to bear arms under 18 U.S.C. § 921(a)(33)(A) and Evans v. DOJ, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403. The court of appeals agreed. Opinion, ¶¶14-16.
The court of appeals also held that uncertainty in the law does not render trial counsel ineffective. See Birts v. State, 68 Wis. 2d 389, 397, 228 N.W.2d 351 (1975). And–importantly–Nelson never argued that trial counsel advised him that there would be no permanent impact on his gun rights. That would have been a misstatement of law and grounds for a Machner hearing.
