2023 WI 37

SUPREME COURT OF WISCONSIN

CASE NO.: 2019AP2383-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Daimon Von Jackson, Jr.,

 Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 400 Wis. 2d 542, 970 N.W.2d 571

(2022 – unpublished)

OPINION FILED: May 12, 2023 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 29, 2022 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Racine 

JUDGE: Mark F. Nielsen & Faye M. Flancher 

JUSTICES:

Per curiam. REBECCA GRASSL BRADLEY, J., filed a concurring 

opinion, in which ZIEGLER, C.J., joined and in which HAGEDORN, 

J., joined except for ¶3. ANN WALSH BRADLEY, J., filed a 

dissenting opinion, in which DALLET, J., joined. 

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

filed by Melinda A. Swartz and the Law Office of Melinda Swartz, 

LLC, Milwaukee. There was an oral argument by Melinda A. Swartz.

For the plaintiff-respondent, there was a brief filed by 

Lisa E.F. Kumfer, assistant attorney general, with whom on the 

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Lisa E.F. Kumfer, assistant attorney general. 
2023 WI 37

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2019AP2383-CR

(L.C. No. 2014CF1721)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Daimon Von Jackson, Jr.,

 Defendant-Appellant-Petitioner.

FILED

MAY 12, 2023

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Dismissed as 

improvidently granted. 

¶1 PER CURIAM. Daimon Von Jackson, Jr. petitioned for 

review of a court of appeals decision that affirmed a circuit 

court order denying his postconviction motion, in which he 

argued, among other things, that his trial counsel was 

ineffective. State v. Jackson, No. 2019AP2383-CR, unpublished 

slip op. (Wis. Ct. App. Dec. 29, 2021). After reviewing the 

record and the briefs, and after hearing oral arguments, we 

conclude that this matter should be dismissed as improvidently 

granted.
No. 2019AP2383-CR 

2

By the Court.——The review of the decision of the court of 

appeals is dismissed as improvidently granted.
No. 2019AP2383-CR.rgb

1

¶2 REBECCA GRASSL BRADLEY, J. (concurring). I agree 

with this court's decision to dismiss the petition for review as 

improvidently granted. I write in concurrence only to respond 

to the dissent, which insinuates that by dismissing the 

petition, this court maintains a miscarriage of justice. Not 

so. The dissent also inaccurately portrays this court's recent 

history regarding dismissed petitions.

¶3 Lobbing an alarming accusation, the dissent declares: 

"[w]ithout a decision in this case, we leave a conviction intact 

without examining the circumstances that led to what a 

[dissenting] judge of the court of appeals referred to as a 

failure of both the court and the entire justice system." 

Dissent, ¶24 (citing State v. Jackson, No. 2019AP2383-CR, 

unpublished slip op., ¶88 (Reilly, J., dissenting)). This 

statement underrates the work of the three-judge panel that 

heard the appeal. After a thorough review, two of those three 

judges voted to affirm the decision made by the circuit court 

judge. As noted in the majority opinion, the dissenting judge 

largely raised issues neither presented to the circuit court nor 

argued on appeal. Jackson, No. 2019AP2383-CR, ¶50 n.23 

(majority op.). The majority criticized the dissenting judge's 

"advocacy," reiterating the uncontroversial axiom that the court 

of appeals is not a defense attorney. Id. Damion Von Jackson's

right to an appeal was fully satisfied when the court of appeals 

addressed the arguments he actually made. Just because a single 

judge at one point in this case's procedural history "perceived" 
No. 2019AP2383-CR.rgb

2

a "failure" of the justice system does not entitle Jackson to 

further review. See dissent, ¶24.

¶4 The dissent also makes the unsupported assertion that 

"[a]n examination of recent dismissals as improvidently granted 

reveals a largely inconsistent practice with regard to whether 

this court provides any explanation for its dismissals." Id., 

¶15. The dissent's own examples illustrate its error. The 

dissent states:

For examples of dismissals without explanation, 

see Slamka[ v. Gen. Heating and Air Conditioning 

Inc., 2022 WI 68], 404 Wis. 2d 586[, 980 N.W.2d 957]; 

Cobb v. King, 2022 WI 59, 403 Wis. 2d 198, 976 

N.W.2d 410; Fond du Lac County v. S.N.W., 2021 WI 41, 

396 Wis. 2d 773, 958 N.W.2d 530; State v. Kloss, 2020 

WI 26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha 

County v. J.J.H., 2020 WI 22, 390 Wis. 2d 531, 939 

N.W.2d 49; Halbman v. Barrock, 2017 WI 91, 378 

Wis. 2d 17, 902 N.W.2d 248. 

In contrast, for examples of explanations 

provided by the court for a dismissal as improvidently 

granted, see Smith v. Anderson, 2017 WI 43, 374 

Wis. 2d 715, 893 N.W.2d 790; Michael J. Waldvogel 

Trucking, LLC v. LIRC, 2012 WI 28, 339 Wis. 2d 248, 

810 N.W.2d 811; Nedvidek v. Kuipers, 2009 WI 44, 317 

Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 

35, 317 Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 

2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v. 

Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.

Id., ¶15 n.2. The year in each citation is telling. The 

dissent cites five cases from the most recent five years in 

which no explanation was offered. The dissent's sampling does 

not include a sixth case in which this court did the same during 

this period. See State v. Lee, 2022 WI 32, ¶1, 401 Wis. 2d 593, 

973 N.W.2d 764 (per curiam). In contrast, the dissent cites a 

single case from the past decade containing an explanation. 
No. 2019AP2383-CR.rgb

3

Notably, two justices did not participate in that case, which 

may explain why it is an outlier.1 Smith, 374 Wis. 2d 715, ¶10. 

The remainder of the cases cited in which this court offered an 

explanation are from more than a decade ago, and one case is 

from 2007——about 16 years ago.

¶5 Far from establishing a "largely inconsistent 

practice," the dissent's thorough examination of these "recent" 

examples establishes a no-explanation trend. Dissent, ¶15. The 

dissent quibbles over the definition of "recent," characterizing 

my concept of what is recent as too limited. Id., ¶15 n.1. The 

irony, of course, is that this writing simply applies the very 

definition of "recent" the dissent uses. The dissent's "recent" 

examples show the opposite of the point the dissent is trying to 

make. The dissent may lament the no-explanation trend, but 

calling the court's practice "inconsistent" flies in the face of 

the facts.

¶6 This court's recent practice is in accord with the 

traditional approach. When courts of last resort dismiss a 

petition, they customarily do not explain why, although courts 

have at times exercised their discretion to make exceptions to 

this practice on a case by case basis. 5 Am. Jur. 2d Appellate 

Review § 347 (updated Feb. 2023) ("Ordinarily, no opinion 

 

1 As I have previously explained, "[c]itizens of the state 

deserve to have the entire supreme court decide all cases unless 

extreme circumstances require otherwise." Wis. Judicial Comm'n 

v. Woldt, 2021 WI 73, ¶56 n.2, 398 Wis. 2d 482, 961 N.W.2d 854 

(Rebecca Grassl Bradley, J., concurring/dissenting) (quoting

State v. Herrmann, 2015 WI 84, ¶154, 364 Wis. 2d 336, 867 

N.W.2d 772 (Ziegler, J., concurring)).
No. 2019AP2383-CR.rgb

4

accompanies the dismissal of a . . . [petition] as improvidently 

granted. However, the Court may issue an opinion per curiam 

defending the dismissal, especially where the Court wants to 

refute the arguments of some justices dissenting from the 

dismissal."); see also Rice v. Sioux City Mem'l Park Cemetery, 

349 U.S. 70, 77 (1955) ("We have taken this opportunity to 

explain . . . [why the petition is being dismissed], when 

normally, for obvious reasons in view of our volume of business, 

no opinion accompanies dismissal of a writ as improvidently 

granted[.]"). The United States Supreme Court, for example, 

typically dismisses a petition in a mere one-sentence order. 

E.g., In re Grand Jury, 598 U.S. __, 143 S. Ct. 543 (2023) (per 

curiam). The dissent does not suggest this case warrants an 

exception to our practice; it argues explanations should 

accompany all dismissals.

¶7 In decrying our custom, the dissent examines its 

possible underlying rationales only in passing and only in 

response to the concerns raised in this writing. As the 

proponent of discarding a customary practice, the dissent bears 

the burden of examining why the practice exists and then 

explaining why it should be rejected:

In the matter of reforming things, as distinct from 

deforming them, there is one plain and simple 

principle; a principle which will probably be called a 

paradox. There exists in such a case a certain 

institution or law; let us say, for the sake of 

simplicity, a fence or gate erected across a road.

The more modern type of reformer goes gaily up to it 

and says, "I don't see the use of this; let us clear 

it away." To which the more intelligent type of 

reformer will do well to answer: "If you don't see 

the use of it, I certainly won't let you clear it 
No. 2019AP2383-CR.rgb

5

away. Go away and think. Then, when you can come 

back and tell me that you do see the use of it, I may 

allow you to destroy it."

G.K. Chesterton, The Thing: Why I am Catholic 27 (Dodd, Mead 

and Co. 1930); cf. Bartlett v. Evers, 2020 WI 68, ¶203, 393 

Wis. 2d 172, 945 N.W.2d 685 (Kelly, J., concurring/dissenting) 

(explaining the purpose of precedent is "[t]o remind us that 

those who came before were diligent and capable in their work, 

and that in doubtful matters it is best to leave settled things 

settled unless there is a clear and present need to do 

otherwise").

¶8 Perhaps the tradition should be discarded; however, a 

cursory dissent in which "recent" history is misused to support 

a preconceived outcome is insufficient to justify that 

conclusion. The tradition may serve many purposes, including 

the preservation of limited judicial resources. See Rice, 349 

U.S. at 77. For example, if this court determines the lower 

court reached the correct outcome, further review can be a waste 

of time. Lee, 401 Wis. 2d 593, ¶2 (Rebecca Grassl Bradley, J., 

concurring). Under that circumstance, this court may conclude 

further review would not only waste judicial resources but also 

cause an unwarranted delay in a case's final resolution. 

Additionally, the tradition may stem from the principle of 

judicial restraint. If this court declines to decide an issue, 

explaining the avoidance could inadvertently create persuasive 

authority on the issue, thereby nonsensically undermining the 

very decision not to decide it. 

¶9 The dissent attempts to dispel these concerns by 

suggesting a single-sentence order dismissing the petition 
No. 2019AP2383-CR.rgb

6

because its resolution "will not lead to any further development 

of the law[.]" Dissent, ¶15 n.1 (quoting Slamka, 404 

Wis. 2d 586, ¶5 (Ann Walsh Bradley, J., concurring)). The 

dissent claims this minimal explanation would neither consume 

judicial resources nor decide any issue but would foster 

transparency. This proposal presupposes a majority of this 

court in a particular case would agree on why a petition should 

be dismissed. Often, no such majority exists. If two or three 

justices dissent from the dismissal, forming a majority on 

rationale may be challenging. Some justices may disagree with 

the majority's reasoning, leading to separate writings, which in 

turn may prompt other justices to write separately in response. 

A broadly-worded order without a specific reason for dismissal 

facilitates joinder. The issue of judicial resources is more 

complicated than the dissent implies. 

¶10 The dissent does not recognize that merely declaring a 

petition lacks law-developing potential is itself a holding with 

law-developing potential. Even if not binding, it hints this 

court would not distinguish or overrule an existing precedent. 

Perhaps such a dismissal should not be read that way, but this 

court's decisions are often misconstrued. Cf. Trump v. Evers, 

No. 2020AP1971-OA, unpublished order, 4 (Wis. Dec. 3, 2020) 

(Roggensack, C.J., dissenting) ("I also am concerned that the 

public will misunderstand what our denial of the petition means. 

Occasionally, members of the public seem to believe that a 

denial of . . . a case signals that the petition's allegations 

are either false or not serious. Nothing could be further from 
No. 2019AP2383-CR.rgb

7

the truth."); O'Bright v. Lynch, No. 2020AP1761-OA, unpublished 

order, 2 (Wis. Oct. 29, 2020) (Roggensack, C.J., concurring) ("I 

write separately to clarify that our denial of the petition for 

an original action should not be construed as an endorsement to 

disregard Wisconsinites' fundamental right to vote.").

¶11 Finally, it is unclear whether the dissent's proposal 

would actually give the public more than an order simply 

declaring the case dismissed. Without some explanation as to 

why the court's review of the case would not develop any law, 

the conclusory order recommended by the dissent would not 

promote transparency.2

¶12 I am authorized to state that Chief Justice ANNETTE 

KINGSLAND ZIEGLER joins this concurrence and that Justice BRIAN 

HAGEDORN joins this concurrence except for ¶3. 

 

2 The dissent also states, "[this court] dismisses a case 

that it at one point in time thought worthy of our review," 

castigating this court's supposed "about-face." Dissent, ¶15. 

The dissent does not acknowledge that a petition for review 

needs only three votes (less than a majority of the full court) 

to be granted. Wis. S. Ct. IOP III.B.1 (Feb. 28, 2023).
No. 2019AP2383-CR.awb

1

¶13 ANN WALSH BRADLEY, J. (dissenting). I write 

separately for two reasons. First, as I have stated previously, 

I believe that this court should explain to the litigants and 

the public the reason for a dismissal as improvidently granted. 

At the very least, the court should give the litigants a 

reasoned justification for leaving the questions unanswered 

given that they have expended substantial effort and resources 

to argue this case before us.

¶14 Second, in my view, the issues in this case are worthy 

of this court's review. Although the degree of law development 

is limited, Judge Reilly's dissent in the court of appeals 

raises substantial questions about whether Daimon Von Jackson 

received constitutionally adequate representation and even 

refers to this case as a "fail[ure]" of the "entire justice 

system." State v. Jackson, No. 2019AP2383-CR, unpublished slip 

op., ¶88 (Wis. Ct. App. Dec. 29, 2021) (Reilly, J., dissenting). 

Because I believe we should address the issues presented, I 

respectfully dissent.

I

¶15 The court disposes of this case as improvidently 

granted in a terse, two-sentence per curiam opinion. It 

dismisses a case that it at one point in time thought worthy of 

our review, offering no insight for either these litigants or 

future litigants as to the court's rationale for its about-face. 

An examination of recent dismissals as improvidently granted 
No. 2019AP2383-CR.awb

2

reveals a largely inconsistent practice1 with regard to whether 

this court provides any explanation for its dismissal.2 

¶16 The result of this inconsistent practice is a lack of 

guidance for potential litigants and the public, as well as an 

 

1 The concurrence asserts that there has been the emergence 

of a "no-explanation trend" over the past five years such that 

it should now be the accepted practice of the court. 

Concurrence, ¶5. Regardless of whether an examination of 

"recent" history encompasses a shorter or longer trajectory, the 

court five years ago (without explanation) stopped offering 

explanations. Such a change does not transform an alleged 

"custom" into an entrenched practice entitled to the patina of 

precedential weight. See id., ¶7. 

Further, the rationales offered by the concurrence for 

adhering to this purported new "tradition" of offering no 

explanation are easily dispatched. The preservation of scarce 

judicial resources and the inadvertent resolution of an issue 

are certainly worthy of consideration. But a single sentence 

stating that a "review should be deemed improvidently granted 

because the issue for which we took this case will not lead to 

any further development of the law," as I have offered in the 

past, neither consumes a great deal of resources nor decides any 

issue in controversy. See Slamka v. Gen. Heating and Air 

Conditioning Inc., 2022 WI 68, ¶5, 404 Wis. 2d 586, 980 

N.W.2d 957 (Ann Walsh Bradley, J., concurring).

2 For examples of dismissals without explanation, see 

Slamka, 404 Wis. 2d 586; Cobb v. King, 2022 WI 59, 403 

Wis. 2d 198, 976 N.W.2d 410; Fond du Lac County v. S.N.W., 2021 

WI 41, 396 Wis. 2d 773, 958 N.W.2d 530; State v. Kloss, 2020 WI 

26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha County v. J.J.H., 

2020 WI 22, 390 Wis. 2d 531, 939 N.W.2d 49; Halbman v. Barrock, 

2017 WI 91, 378 Wis. 2d 17, 902 N.W.2d 248. 

In contrast, for examples of explanations provided by the 

court for a dismissal as improvidently granted, see Smith v. 

Anderson, 2017 WI 43, 374 Wis. 2d 715, 893 N.W.2d 790; Michael 

J. Waldvogel Trucking, LLC v. LIRC, 2012 WI 28, 339 Wis. 2d 248, 

810 N.W.2d 811; Nedvidek v. Kuipers, 2009 WI 44, 317 

Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 35, 317 

Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 2009 WI 22, 316 

Wis. 2d 1, 762 N.W.2d 104; State v. Townsend, 2007 WI 31, 299 

Wis. 2d 672, 728 N.W.2d 342.
No. 2019AP2383-CR.awb

3

effective negation of the numerous hours of work and sums of 

money spent seeking a decision on the merits. Because there is 

a strong public policy rationale behind providing reasons for a 

dismissal as improvidently granted, the court's general practice 

should be to provide an explanation for such a dismissal. Its 

"we don't have to tell you, so we won't" approach serves only to 

undermine transparency and accountability, while compounding the 

alleged systemic failures in this case.

II

¶17 I not only take issue with the majority's lack of 

explanation of its decision, but I also disagree with the 

decision itself. The issues raised in this case revolve around 

whether Jackson's fourth trial counsel, Attorney Scott Anderson, 

was constitutionally ineffective.3 Jackson asserts that Attorney 

Anderson was ineffective for failing to communicate a plea offer 

to him, and for failing to meet with him as trial approached. 

Jackson also contends that the circuit court should have 

followed up to ensure that his attorney had met with him.

¶18 Jackson pleaded guilty to second-degree reckless 

homicide as a result of an incident where the victim was killed 

during a robbery. The plea was not as party to a crime (PTAC). 

See Wis. Stat. § 939.05 (2013-14).4 This piece of information is 

 

3 See Strickland v. Washington, 466 U.S. 668, 687 (1984) 

(setting forth that a defendant must demonstrate both deficient 

performance and prejudice to be successful on a claim of 

ineffective assistance).

4 All subsequent references to the Wisconsin Statutes are to 

the 2013-14 version unless otherwise indicated.
No. 2019AP2383-CR.awb

4

important for two reasons. First, a previous plea offer, which 

the prosecutor said would remain open until the date of trial, 

included a plea as PTAC. Second, Jackson has maintained 

throughout the case that he was not the shooter, but was merely 

a lookout for the robbery that resulted in the shooting. 

Jackson argues that he would have been treated more favorably at 

sentencing if he pleaded as PTAC, which would have allowed him 

to credibly assert that he was the lookout rather than the 

shooter. 

¶19 The record contains evidence supporting the claim that 

Jackson was the lookout. Most compelling is that an eyewitness 

described the clothes the two assailants were wearing. 

Surveillance video from a casino shows that later on the day of 

the homicide, Jackson and two other men were gambling. The two 

other men were wearing the clothes the eyewitness described, and 

Jackson was not. Further, a co-defendant's fingerprints were 

found on the gun magazine. 

¶20 Attorney Anderson certainly made some mistakes, and 

although the State did not agree that Anderson's representation 

was constitutionally deficient, it conceded at oral argument 

that mistakes were made. This court apparently agreed with such 

an assessment when it imposed discipline on Anderson for 

violations of the rules of professional conduct in the course of

his representation of Jackson. See Matter of Disciplinary 

Proceedings Against Anderson, 2020 WI 82, 394 Wis. 2d 190, 950 

N.W.2d 191. 
No. 2019AP2383-CR.awb

5

¶21 Although our precedent indicates that a violation of 

the rules of professional conduct does not necessarily mean that 

counsel was constitutionally ineffective, State v. Cooper, 2019 

WI 73, ¶¶21-22, 387 Wis. 2d 439, 929 Wis. 2d 192, Judge Reilly's 

dissent in the court of appeals gives me enough pause to 

conclude that we should review the issues presented in this 

case. The sheer number and magnitude of the alleged errors 

contribute to a lack of confidence in the outcome that should be 

addressed by this court.

¶22 For example, Judge Reilly concluded that Jackson was 

"coerced into becoming the 'shooter'" due to constitutionally 

ineffective representation, the State's breach of a pretrial 

offer for Jackson to plead as PTAC, and the circuit court's 

defective plea colloquy. Jackson, No. 2019AP2383-CR, at ¶62 

(Reilly, J., dissenting). The mistakes Judge Reilly observed 

were recounted in a litany of errors:

 "A 'reasonably competent attorney' would have 

corrected the circuit court at both the final pretrial 

hearing and the trial/plea date that Jackson was not 

facing forty-six years in prison on an armed robbery 

charge if he went to trial." Id., ¶63 (Reilly, J., 

dissenting) (footnote omitted).

 "A reasonably competent attorney would have challenged 

the State's breach of its plea offer." Id.

 "A reasonably competent attorney would have understood 

that a second-degree reckless homicide charge is 
No. 2019AP2383-CR.awb

6

materially different from a charge of second-degree 

reckless homicide as a party to the crime." Id.

 "A reasonably competent attorney would have provided 

his client with a pretrial offer and discussed the 

offer with his client prior to the day of trial." Id.

 "A reasonably competent attorney would have met with 

and prepared both his client and witnesses prior to 

the trial date." Id.

 "A reasonably competent attorney would have procured, 

produced, and argued evidence that Jackson was not the 

'shooter' but was blocks away when Bobby Henderson 

shot Carter." Id.

¶23 In Judge Reilly's view, the "objective 

facts . . . show that Jackson was the lookout rather than the 

shooter." Id., ¶64. It is true that that there is no 

difference in the level of felony or permissible sentencing 

range for a conviction as a principal as opposed to a conviction 

as PTAC. See Wis. Stat. §§ 939.05(2), 940.06. But "[f]or 

anyone to suggest that a judge at sentencing would treat a coldblooded killer the same as a 'lookout' is sorely lacking in the 

understanding of what a judge at sentencing is tasked with 

doing." Jackson, No. 2019AP2383-CR, at ¶81 (Reilly, J., 

dissenting).

¶24 Jackson seeks from this court a remand to the circuit 

court for additional fact-finding. This court should decide 

whether he is entitled to this remedy. Without a decision in 

this case, we leave a conviction intact without examining the 
No. 2019AP2383-CR.awb

7

circumstances that led to what a judge of the court of appeals 

referred to as a failure of both the court and the entire 

justice system. See id., ¶88 (Reilly, J., dissenting). Such a 

perceived "failure" should surely be worthy of our review.

¶25 For the foregoing reasons, I respectfully dissent.

¶26 I am authorized to state that Justice REBECCA FRANK 

DALLET joins this dissent.
No. 2019AP2383-CR.awb

1