No.    99-1008-CR

 

STATE OF WISCONSIN                                                  IN COURT OF APPEALS

                                                                                                           DISTRICT III

 

 

 

 

FILED

 

December 30, 1999

 

CLERK OF

COURT Of APPEALS

OF WISCONSIN

 

 
State of Wisconsin,

 

                        Plaintiff-Respondent,

 

            v.

 

Audell Hernandez,

 

                        Defendant-Appellant.

 

 

ERRATA SHEET

 

 


Marilyn L. Graves
Clerk of Court of Appeals
P.O. Box 1688
Madison, WI   53701-1688

 

Court of Appeals District I
633 W. Wisconsin Ave., #1400
Milwaukee, WI   53203-1918

 

Jennifer Krapf
Administrative Assistant
Ten East Doty Street, Suite 700
Madison, WI  53703

 

Peg Carlson
Chief Staff Attorney
Ten East Doty Street, Suite 700
Madison, WI  53703

 

Court of Appeals District II
2727 N. Grandview Blvd.
Waukesha, WI   53188-1672

Court of Appeals District IV
Ten East Doty Street, Suite 700
Madison, WI  53703

 

Hon. John D. McKay

Circuit Judge

100 S. Jefferson

Green Bay, WI 54301

 

John P. Zakowski

P.O. Box 23600

Green Bay, WI 54305

 

James M. Freimuth

P.O. Box 7857

Madison, WI 53707

 

Eduardo M. Borda

606 W. Wis. Av. Ste. 1400

Milwaukee, WI 53203

 


                        PLEASE TAKE NOTICE that the attached page 2 is to be substituted for page 2 in the above-captioned opinion which was released on November 2, 1999.

 

 


evidence of waiver.  He also claims that his counsel was ineffective by failing to inform him that he had an absolute right to testify and that the decision was his alone to make.  He further contends that even if informed of the right, it was prior to trial and counsel was ineffective for failing to inform him again during trial.  We conclude from our examination of the entire record, including the post-trial motions, that Hernandez’s counsel fully advised him of his right to testify and that Hernandez knowingly, intelligently and voluntarily waived that right.  We also determine that Hernandez has failed to develop a record to show that his counsel’s assistance was ineffective.  Accordingly, the judgment and order are affirmed.

                        1        Hernandez was charged with one count of first-degree intentional homicide in connection with the death of Julian Rodriguez.  Rodriguez had been dating Hernandez’s daughter and was going to take her to New York.  Hernandez had an incestuous relationship with his daughter, and he was displeased that she had a boyfriend.  Hernandez told his attorney that he got into a fight with Rodriguez and, after Rodriguez was slumped over the wheel in the car, he struck him in the base of the neck a number of times with a wrench.  Hernandez later attempted to dispose of the body by putting it into Rodriguez’s car trunk, driving to another county and setting fire to the car.  Hernandez told the agent conducting the presentence investigation that Rodriguez had initiated the fight, that he knocked Rodriguez down and then kicked Rodriguez’s head a number of times with steel-toed shoes. 

2                    Hernandez met with his attorney several times during the course of the action.  Hernandez spoke only Spanish, and his attorney spoke only English.  An interpreter was present for their meetings.  They had two lengthy conversations regarding the trial and his rights at trial.  At one of the meetings, counsel recommended   that   Hernandez   plead   no   contest   to   first-degree   intentional