State v. Von Jackson

Decision Date29 December 2021
Docket NumberAppeal No. 2019AP2383-CR
Citation2022 WI App 7,970 N.W.2d 571 (Table)
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Daimon VON JACKSON, Jr., Defendant-Appellant.
CourtWisconsin Court of Appeals


¶1 Daimon Von Jackson, Jr. appeals from a judgment of conviction entered after his no contest plea to second-degree reckless homicide as a repeater with the use of a dangerous weapon contrary to WIS. STAT. §§ 940.06(1) (2013-14),1 939.62(1)(c), and 939.63(1)(b) (hereinafter "second-degree reckless homicide"), and from an order denying his postconviction motion seeking to withdraw his plea.2 On appeal, Jackson asserts he should be allowed to withdraw his plea because: (1) he received ineffective assistance of trial counsel; (2) the circuit court erred in denying his request to have trial counsel replaced; and (3) the interests of justice require plea withdrawal or resentencing to correct a miscarriage of justice. Because we conclude Jackson's trial counsel was not ineffective, the circuit court did not err in denying Jackson's request to replace trial counsel, and the interests of justice require neither plea withdrawal nor resentencing, we affirm.


¶2 On December 15, 2014, the State filed a Complaint charging Jackson with multiple counts related to the death of Maurice Carter. The State charged Jackson with: (1) one count of felony murder party to a crime (PTAC) as a repeater while using a dangerous weapon contrary to WIS. STAT. §§ 943.32(2), 940.03, 939.05, and 939.62(1)(c) ; (2) possession of a firearm by a felon—PTAC contrary to WIS. STAT. §§ 941.29(2)(a),3 939.50(3)(g), and 939.05 ; and (3) armed robbery with use of force—PTAC as a repeater contrary to WIS. STAT. §§ 943.32(1)(a) and (2), 939.50(3)(c), 939.05, and 939.62(1)(c). As the basis for the charges, the State alleged that on December 11, 2014, Jackson was involved in Carter's death and that Carter's death occurred during the course of an attempted robbery with use of a dangerous weapon.

¶3 Per the Complaint, Jackson and two other individuals, Bobby Henderson and Travenn Webster, drove to the 1000 block of Grand Avenue in Racine, Wisconsin, where two of the men approached Carter. Tauries Murry, who witnessed the altercation between Carter and the two men from his nearby vehicle, described the suspects to police. He described the first suspect "as a shorter, fat, caramel-skinned black male wearing a light grey hoodie and grey sweatpants." He described the second suspect as "taller, dark skinned, wearing a black sweatshirt and black hat." Murry reported "he heard at least one gunshot and" saw "Carter fall to the ground." He also reported having seen the two men lean over Carter after Carter had fallen to the ground and that it looked like the two men were "going through [Carter's] pockets."

¶4 Officers found a handgun ammunition magazine with Henderson's fingerprints at the crime scene. The following morning, December 12, 2014, officers conducted a traffic stop involving Henderson, "who admitted his involvement." Henderson identified Jackson and Webster as having also been involved. According to Henderson, Webster dropped him and Jackson off with the plan that he and Jackson would rob Carter and Murry. Henderson reported he was heading toward Murry's vehicle when "he heard Jackson scuffling with Carter at which time he heard two gunshots" and that Jackson later stated he shot Carter because he believed Carter had a gun.

¶5 Jackson was involved in a separate traffic stop on December 12, 2014. The officers took Jackson to the police station subsequent to the stop, but he was not under arrest or in custody at that time. When officers initially spoke to Jackson, he denied having any knowledge of the Carter incident. Jackson was eventually placed under arrest during the course of the interview and officers administered Miranda4 warnings. After the Miranda warnings were administered, Jackson admitted his involvement and asserted he had been "acting as a lookout for the robbery," that he did not shoot Carter, and that they did not intend to kill Carter.

¶6 Jackson made an initial appearance on December 15, 2014, and he entered not guilty pleas on all counts on January 22, 2015. Multiple attorneys represented Jackson throughout the course of this case. His first attorney moved to withdraw at the July 28, 2015 status hearing, citing a breakdown in attorney-client communication. The circuit court granted counsel's motion and explained to Jackson that "[t]his is not going to be a revolving door. You're not going to come back and back to this Court and say I want another lawyer. There's been a breakdown until you get a lawyer that you're satisfied with. The next lawyer you get is the lawyer you're going to have to keep."5 Jackson confirmed he understood.

¶7 The Wisconsin State Public Defender (SPD) subsequently appointed another attorney to represent Jackson. Like his first attorney, Jackson's second attorney also sought to withdraw—this time within a matter of weeks—due to a breakdown in communication stemming from an acrimonious relationship between counsel and Jackson's mother. Jackson did not object to the withdrawal and the court granted counsel's motion. The court again reminded Jackson "that this is not going to be a revolving door, so it's not, you're not going to be allowed to come back to this courtroom and ask for additional lawyers until you get one that you are comfortable with[.]" Jackson again confirmed he understood.

¶8 The SPD appointed a third attorney for Jackson on September 28, 2015. During the course of his representation, counsel filed a Miranda-Goodchild6 motion seeking to exclude Jackson's admission that he was the lookout during the incident that resulted in Carter's death. The circuit court held a hearing on Jackson's motion on January 8, 2016, and on February 22, 2016, the court issued a written order denying Jackson's motion.7 During the course of his representation, Jackson's third attorney also successfully sought dismissal of count three of the Complaint (armed robbery with use of force as PTAC).8

¶9 Jackson's trial was set for March 1, 2016; however, on February 23, 2016, at what was supposed to be the final pretrial conference, the court addressed the State's motion for an adjournment because Webster—who the State needed to call as a trial witness—was unavailable. At the February 23 conference, Jackson's attorney informed the court that Jackson did not feel counsel had represented his best interests and that Jackson had "multiple complaints" about him. When the court explained that counsel was not Jackson's "hand puppet" and that counsel would not necessarily "do everything you [Jackson] ask him to do[,]" Jackson responded that counsel "hasn't done nothing I asked him to do." The court thereafter rejected Jackson's attempt to discharge his third attorney. However, the court ultimately granted a subsequent withdrawal request because of a medical issue that rendered the third attorney unavailable.

¶10 The SPD appointed Jackson's fourth attorney (hereinafter "trial counsel") on March 11, 2016. Trial counsel attended hearings on March 17, March 24, August 9, and October 17, 2016. At the August 9 hearing, the court set November 1, 2016, as the new trial date. The court held a final pretrial conference on October 17, 2016, at which time the court also addressed Jackson's pro se motion asking for a new lawyer to replace trial counsel.9 When the court asked Jackson why he wanted trial counsel to withdraw, Jackson stated trial counsel "doesn't keep in contact with me. He hasn't been properly representing me at all. He hasn't filed any motions on my behalf that I asked him about. He hasn't done anything for me." The following exchange between the court and Jackson ensued:

THE COURT: Well, just because you ask [trial counsel] to file motions, doesn't mean that he will or should.
[JACKSON]: But if he says he --
THE COURT: Stop. Please don't interrupt me when I'm speaking. That's my one rule. I give you the courtesy of listening, I expect the same of you. This is a case that is over two years old. You have had a number of other attorneys representing you.
I can see that [third counsel] represented you. This has been scheduled for trial many times. The information was filed back on January 22nd of 2015. I will not allow [trial counsel] to withdraw, whether it be on your request or anyone else's.
So, [trial counsel], I ask that you meet with [Jackson] and that you also be prepared to proceed on November 1st. Again it is the number one trial.

Trial counsel's next meeting with Jackson was on the trial date.

¶11 Prior to trial, in an email dated October 17, 2016, the State presented a plea offer in which it agreed to amend the felony murder PTAC charge to second-degree reckless homicide PTAC as a habitual offender while armed, dismiss and read in count two, dismiss and read in the charges filed in Racine County case No. 2016CF252,10 and to recommend prison without requesting a specific term of imprisonment. Although the State indicated in the email that the offer would remain "open until the Friday before the trial[,]" it told the court the same day that it would agree to leave all offers open until the day of trial.

¶12 On November 1, 2016, the scheduled trial date, trial counsel met with Jackson to discuss whether to proceed to trial or to accept the plea offer where Jackson would plead to second-degree reckless homicide in exchange for a dismissal of the felon-in-possession charge and all the drug charges in his other case.11 Jackson ultimately chose to plead no contest to second-degree reckless homicide as a repeater with use of a dangerous weapon.

¶13 At the plea hearing on November 1, 2016, the circuit court put Jackson under Oath before conducting the plea colloquy.12 The circuit court confirmed Jackson understood the elements of that charge and clarified he was not pleading as party to a crime. Prior to accepting Jackson's plea, the...

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