Opinion by Justice Ziegler, joined by Justices Crooks, Prosser, Roggensack, and Gableman.
¶3 We conclude that the court of appeals improperly remanded the case to the circuit court for further proceedings. Carter's ineffective assistance of counsel claim fails under the two-part inquiry of Strickland v. Washington, 466 U.S. 668, 687 (1984). First, his trial counsel's performance was not deficient. His counsel's strategic decision not to introduce evidence that the child victim was previously sexually assaulted was objectively reasonable considering all the circumstances. Second, even assuming that his counsel's performance was deficient, the deficiency did not prejudice Carter's defense. Evidence that the child victim was previously sexually assaulted would have been inadmissible under Wisconsin's rape shield law, Wis. Stat. §972.11(2) (2007-08), and the narrow five-part test articulated in State v. Pulizzano, 155 Wis. 2d 633, 656-57, 456 N.W.2d 325 (1990). Accordingly, this court reverses the court of appeals' decision and upholds the judgment of the circuit court denying Carter's post-conviction motion for a new trial.Concurrence by Justice Bradley, joined by Chief Justice Abrahamson.
¶78 I agree with the majority that the evidence Carter presented at the post-conviction hearing was insufficient to satisfy the Pulizzano test. ...See 2009-2010 Term of the Wisconsin Supreme Court.
¶79 ... I am at a loss to understand why the majority feels compelled to go further here. I cannot understand why it unnecessarily concludes that Sargent made a "reasonable strategic decision," even though this decision was apparently made in ignorance of the law and left unaddressed a question fundamental to the defense in this case. Accordingly, I respectfully concur.
Attorney not ineffective, in part because trial strategy was reasonable, supreme court holds, by Joe Forward, State Bar of Wisconsin