State v. Geoffrey Daniel Hesser, 2022AP000377

Background

In October 2015 Annie reported that Geoffrey Hesser sexually assaulted her (nonconsensual anal intercourse) in her car with their four‑month‑old daughter present; he was charged with second‑degree sexual assault, attempted second‑degree sexual assault, disorderly conduct, and bail jumping.
At jury trial (trial counsel: Kathryn Jackan, SPD) Hesser was convicted of second‑degree sexual assault and disorderly conduct; pleaded no contest to bail jumping and received a lengthy sentence on the sexual assault count.
Appellate counsel (Megan Sanders‑Drazen, SPD) raised three discretionary‑review issues on direct appeal and the convictions were affirmed.
Hesser later filed a pro se § 974.06 postconviction motion alleging ten instances of trial counsel ineffectiveness; he also claimed appellate counsel was ineffective for not raising them and conflicted because both attorneys worked for the SPD.
At an evidentiary hearing appellate counsel testified she identified four possible issues, advised Hesser she could not personally raise the ineffective‑assistance‑of‑trial‑counsel claim because of a conflict, explained the comparative strengths of issues, and that Hesser chose to keep her and pursue the three non‑ineffective‑assistance issues.
The circuit court denied relief as procedurally barred, concluding Hesser failed to show postconviction counsel was deficient because his newly asserted ineffective‑assistance claims were not “clearly stronger” than the issues raised on direct appeal; this Court affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hesser)	Held
Whether Hesser showed a "sufficient reason" to excuse failure to raise trial‑counsel IAC claims on direct appeal	Hesser failed to show postconviction counsel was ineffective, so no sufficient reason; claims procedurally barred	Postconviction counsel was ineffective for not raising the trial‑counsel IAC claims, so those claims may be considered now	Held: Hesser failed to show postconviction counsel was deficient; claims are procedurally barred
Whether the newly asserted trial‑counsel IAC claims were "clearly stronger" than issues raised on direct appeal	Hesser did not compare or develop why his IAC claims were clearly stronger	The IAC claims are stronger and should have been raised	Held: Hesser did not meet burden or show the claims were clearly stronger; deficiency not established
Whether appellate counsel had an actual conflict of interest and whether prejudice is presumed	Even if a conflict existed, Hesser knowingly elected to keep counsel and waived the conflict; no presumed prejudice	Counsel had an actual conflict (both SPD), so prejudice should be presumed	Held: Assuming a conflict, Hesser knowingly and intelligently waived it by choosing to keep Sanders‑Drazen; no presumed prejudice
Whether a remand for trial counsel (Jackan) testimony was required	Not necessary because Hesser failed to develop the comparative strength argument; additional testimony would not change result	Circuit court should have heard Jackan before weighing relative merits	Held: No remand required; Jackan's testimony unnecessary given Hesser's failure to meet his burden

Key Cases Cited

State v. Escalona‑Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994) (§ 974.06 successive‑petition procedural‑bar and "sufficient reason" framework)
State v. Romero‑Georgana, 360 Wis.2d 522, 849 N.W.2d 668 (2014) (postconviction counsel ineffectiveness: "clearly stronger" standard applies)
State v. Crockett, 248 Wis.2d 120, 635 N.W.2d 673 (2001) (defendant bears burden to show sufficient reason for not raising claim earlier)
State v. Love, 227 Wis.2d 60, 594 N.W.2d 806 (1999) (definition of actual conflict of interest; prejudice presumed if actual conflict shown)
State v. Demmerly, 296 Wis.2d 153, 722 N.W.2d 585 (2006) (waiver of conflict bars later claim of ineffective assistance except where counsel's performance was deficient despite waiver)