State v. Kenneth D. Paulson

No. 99-1920

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

State of Wisconsin,

Plaintiff-Respondent,

Kenneth D. Paulson,

Defendant-Appellant.

APPEAL from an order of the circuit court for Eau Claire County: ERIC J. WAHL, Judge. Affirmed.

Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶1 PER CURIAM. Kenneth Paulson, pro se, appeals from an order denying his Wis. Stat. § 974.06[1] motion for postconviction relief. Paulson argues that he was denied the effective assistance of trial counsel, postconviction counsel and appellate counsel and that he should be granted a new trial in the interest of justice. Because Paulson’s present claims of ineffective assistance of trial counsel and request for a new trial in the interest of justice were or could have been litigated on direct appeal and, further, because he has failed to provide any justification for the omission of claims not previously addressed, we conclude that these claims are procedurally barred under both § 974.06(4) and the holding of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). Additionally, because Paulson has failed to establish ineffective assistance of either his postconviction or appellate counsel, we affirm the trial court’s order.

Background

¶2 In 1996, Paulson was convicted upon a jury’s verdict of three counts of second-degree sexual assault, one count of disorderly conduct and one count of bail jumping, contrary to Wis. Stat. §§ 940.225(2)(a), 947.01 and 946.49(1)(a), respectively. In December 1996, Paulson brought a postconviction motion for a new trial alleging that the real controversy had not been fully tried and, alternatively, that he had been denied effective assistance of trial counsel. After a Machner hearing,[2] the trial court denied Paulson’s motion.

¶3 On his first appeal to this court, Paulson argued he was entitled to a new trial in the interest of justice because the real controversy in his case had not been fully tried and because he was denied effective assistance of trial counsel. Paulson argued that his trial counsel was deficient because he failed to fully investigate, failed to call critical witnesses and failed to properly advise Paulson of his right to testify in his own defense. We affirmed the order denying Paulson’s motion, see State v. Paulson, No. 97-0680-CR, unpublished slip op. (Wis. Ct. App. Dec. 2, 1997), and the Wisconsin Supreme Court subsequently dismissed his untimely petition for review.

¶4 In December 1998, Paulson petitioned our supreme court for a writ of habeas corpus.[3] In January 1999, the court granted the petition pursuant to State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996). However, the order stated:

[P]etitioner’s request for further relief—allowing the late filing and consideration of his petition for review—is denied. The untimely petition for review at issue in this case is available for review and the court has concluded that the petition would not have been granted even if timely filed. The court has not considered petitioner’s new claim that appellate counsel was ineffective at the Machner hearing. That issue must first be raised in the appropriate court pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992) and State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996).

¶5 Paulson subsequently filed a Wis. Stat. § 974.06 motion with the trial court, arguing that he was denied the effective assistance of appellate counsel. Specifically, he asserted that appellate counsel: (1) failed to timely file his petition for review to the Wisconsin Supreme Court;[4] and (2) failed to present “the operative facts” to this court that would have established that his trial counsel was ineffective. The trial court denied his motion and this appeal followed.[5]

Analysis

¶6 Paulson argues that the trial court erred by denying his Wis. Stat. § 974.06 motion because he was denied the effective assistance of counsel. This court’s review of an ineffective assistance of counsel claim is a mixed question of fact and law. See State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999). The trial court’s findings of fact will not be disturbed unless they are clearly erroneous. See id. “However, the ultimate determination of whether the attorney’s performance falls below the constitutional minimum is a question of law which this court reviews independently of [the trial court].” Id.

¶7 This State employs a two-prong test to determine the validity of an ineffective assistance of counsel claim. See id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). To succeed on his claim, Paulson “must show both (1) that his counsel’s representation was deficient and (2) that this deficiency prejudiced him.” Id. at 768 (citing Strickland, 466 U.S. at 694). Further, we may reverse the order of the tests “or avoid the deficient performance analysis altogether if the defendant has failed to show prejudice.” State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990) (citing Strickland, 466 U.S. at 697).

¶8 In order to establish deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 127 (quoting Strickland, 466 U.S. at 687). However, “every effort is made to avoid determinations of ineffectiveness based on hindsight … and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms.” Id.

¶9 The prejudice prong of the Strickland test is satisfied where “the attorney’s error is of such magnitude that there is a reasonable probability that, absent the error, ‘the result of the proceeding would have been different.’” Erickson, 227 Wis. 2d at 769 (quoting Strickland, 466 U.S. at 694).

¶10 Before we turn to the merits of Paulson’s claims, however, we address whether his claims have been brought in the proper forum. While Paulson refers to the ineffective assistance of “appellate” counsel, he challenges the performance of both his postconviction counsel and his appellate counsel. Although postconviction and appellate counsel are often the same person, as was the case here, their functions differ. See State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797, 565 N.W.2d 805 (Ct. App. 1997). While “postconviction representation involves proceedings in the trial court where such are a prerequisite to filing a notice of appeal,” appellate counsel’s work “involves briefing and oral argument in this court.” Id.

¶11 In Smalley, this court recognized that pursuant to State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 672-74, 556 N.W.2d 136 (Ct. App. 1996), a claim of ineffective assistance of postconviction counsel “should be raised in the circuit court either by a petition for a writ of habeas corpus or a motion under [Wis. Stat. § 974.06].” Smalley, 211 Wis. 2d at 797-98. Because the present appeal arose from the denial of Paulson’s Wis. Stat. § 974.06 motion to the circuit court, his claim of ineffective assistance of postconviction counsel is properly before this court. Paulson, however, has failed to develop how his postconviction counsel was ineffective. This court declines to address issues raised on appeal that are inadequately briefed, see State v. Flynn, 190 Wis. 2d 31, 58, 527 N.W.2d 343 (Ct. App. 1994), and we will not develop Paulson’s unsupported arguments for him. See Barakat v. DHSS, 191 Wis. 2d 769, 786, 530 N.W.2d 392 (Ct. App. 1995).

¶12 With regard to Paulson’s claim of ineffective assistance of appellate counsel, this claim “is properly raised by a petition for a writ of habeas corpus in the appellate court which heard the defendant’s direct appeal.” Smalley, 211 Wis. 2d at 797 (citing State v. Knight, 168 Wis. 2d 509, 512-13, 484 N.W.2d 540 (1992)). Therefore his challenge to appellate counsel’s performance should have been raised by a petition for a writ of habeas corpus in this court. Although Paulson did not petition this court for a writ of habeas corpus, we nevertheless conclude that even on its merits, Paulson’s claim fails.

¶13 The majority of Paulson’s claims of ineffective assistance of appellate counsel stem from his assertions regarding the ineffective assistance of his trial counsel. In other words, he argues that his appellate counsel was ineffective for failing to bring to light certain “operative facts” that he alleges would have proved the ineffectiveness of his trial counsel. To that end, Paulson lists various alleged deficiencies on the part of his trial counsel.[6]

¶14 First, Paulson argues that trial counsel was ineffective for failing to properly advise him of his right to testify at trial. In his earlier appeal, this court held that trial counsel had made a strategic decision by recommending that Paulson not take the stand. See Paulson, No. 97-0680-CR, unpublished slip op. at 12. Counsel’s Machner hearing testimony revealed his belief that “Paulson’s testimony would be discredited based on his nine prior convictions and would also add credence to [the victim’s] testimony that she was afraid of Paulson because of his statements that he had recently been released from prison and her belief that he had a weapon.” Paulson, No. 97-0680-CR, unpublished slip op. at 11. Paulson now argues that although trial counsel testified that his strategy was to downplay Paulson’s nine prior convictions, he inadvertently brought up “the fact of [Paulson’s] imprisonment” during cross-examination of the victim. As a result, Paulson asserts: (1) that trial counsel’s explanation for recommending that Paulson waive his right to testify at trial “was not supported by counsel’s conduct at trial; and (2) that trial counsel’s inadvertent reference to “the fact of [Paulson’s] imprisonment” was used to establish the “use or threat of force or violence” element of second-degree sexual assault.[7] Paulson consequently contends that his appellate counsel was ineffective for failing to inform this court or our supreme court of trial counsel’s cross-examination error. We are not persuaded.

¶15 On direct examination of the victim, the prosecutor asked, “What were the things that Mr. Paulson was saying that made you uneasy?” The victim replied, “Well, he was saying that he just got out of prison and that he was packing, which I assumed meant a gun, so that scared me.” On cross-examination, defense counsel questioned the victim about her earlier testimony: “At that point in time, did he not tell you that he had come from prison? Is that correct?” The victim responded, “Not that I remember. He could have. I don’t know.” Contrary to Paulson’s assertions, defense counsel’s question did not concede the fact of Paulson’s imprisonment to the jury. Rather, his inquiry was merely a follow-up to the victim’s earlier testimony on direct examination.

¶16 In Paulson’s earlier appeal, this court recognized: “[Trial counsel] informed Paulson that he believed Paulson’s testimony would be discredited based on his nine prior convictions and would also add credence to [the victim’s] testimony that she was afraid of Paulson because of his statements that he had recently been released from prison.” Paulson, No. 97-0680-CR, unpublished slip op. at 11. Because the victim, on direct examination, had testified that Paulson said he was recently released from prison, it was reasonable trial strategy for trial counsel to recommend that Paulson not testify on his own behalf. Accordingly, we conclude that any alleged failure on the part of appellate counsel to emphasize trial counsel’s cross-examination inquiry was neither deficient performance nor prejudicial to Paulson’s appeal.[8]

¶17 Paulson additionally emphasizes trial counsel’s alleged failure to properly investigate. In his first appeal, Paulson’s appellate counsel challenged trial counsel’s failure to discover the criminal record of one of the State’s witnesses. At the Machner hearing, trial counsel testified that although he wrote the Criminal Information Bureau for the witness’s criminal history, it did not show up on the record check that he received. Counsel further testified that he believed the discovery of this criminal record would have been useful in discrediting the witness’s credibility and that the omission of this evidence undermined his confidence in the outcome. This court concluded, however, that trial counsel’s request from the CIB was reasonable and that there was no reason for him to doubt the reliability of the information he received. Accordingly, we held that trial counsel’s failure to discover the witness’s criminal history did not constitute deficient performance. See Paulson, No. 97-0680-CR, unpublished slip op. at 8.

¶18 Paulson now argues that the Machner hearing transcript establishes that trial counsel did, in fact, have the witness’s record and appellate counsel was therefore ineffective for failing to make this known on appeal. We disagree. Paulson focuses on the following statement made by postconviction counsel at the outset of the Machner hearing:

Finally, the brief indicates that [trial counsel] did not discover the criminal records of [the witness]. That was inaccurate. I met with [trial counsel]. He opened his client file to me and it indicated that he did indeed discover that criminal record.

This statement, however, does not establish what exactly was found nor when trial counsel discovered it. Trial counsel’s undisputed testimony at the Machner hearing, however, established that he was unaware of the witness’s criminal record at the time of trial. There is no evidence to support Paulson’s contention that trial counsel had the records and did not use them. Accordingly, we conclude that appellate counsel’s argument that trial counsel should have discovered the witness’s record was an appropriate argument based on the record of the Machner hearing and therefore did not constitute ineffective assistance of counsel.

¶19 Paulson further challenges his trial counsel’s failure to pursue a “plea agreement.” Paulson, in fact, refers to a case settlement format that stated, in pertinent part: “Set up polygraph on ct 1[,] if passes, [defendant] w/ still plead to DC with repeater and will talk about sentence recommendation later.” At the rescheduling of Paulson’s preliminary hearing, the assistant district attorney stated the following: “This was the time set for a preliminary hearing in this matter. However, Mr. Paulson indicated his interest in taking a polygraph exam. The State agreed to offer him that opportunity.” It is undisputed that a polygraph exam was never administered to Paulson. At the Machner hearing, trial counsel testified that he did not know why a polygraph exam was never administered and the “case settlement format” form, although offered at the Machner hearing, was not admitted into evidence.[9]

¶20 Because this issue was not raised by appellate counsel in his earlier appeal and because Paulson provides no justification for its omission, it is now procedurally barred under both Wis. Stat. § 974.06(4) and Escalona-Naranjo. However, to the extent that Paulson argues his appellate counsel was ineffective for failing to raise the polygraph issue on his first appeal, we are unpersuaded, as Paulson has failed to establish how any alleged deficiency prejudiced him.[10]

By the Court.—Order affirmed.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

[1] All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

[2] See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979) (“it is a prerequisite to a claim of ineffective representation on appeal to preserve the testimony of trial counsel”).

[3] The petition does not appear in the record before us, but neither party disputes its existence. Furthermore, both parties agree that the trial court number indicated in the supreme court’s order was incorrect and that the correct number is 95-CF-394.

[4] Because Paulson failed to brief this issue on appeal, it is deemed abandoned. See Reiman Assocs. v. R/A Adver., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d 292 (Ct. App. 1981). Even, however, were we to address this issue on its merits, it would fail. Although appellate counsel’s failure to timely file Paulson’s petition for review constituted deficient performance, see State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 253-54, 585 N.W.2d 45 (1996), Paulson was not prejudiced, as the supreme court stated that the petition would not have been granted even if it had been timely filed. See id. at 254.

[5] To the extent that the recitation of the procedural history may be incomplete, it reflects only those documents included in the record before us. See Ryde v. Dane County Dept. of Soc. Servs., 76 Wis. 2d 558, 563, 251 N.W.2d 791 (1977) (our review is limited to the record before us).

[6] To the extent that Paulson asserts ineffective assistance of trial counsel or otherwise requests a new trial in the interests of justice, these claims are procedurally barred under both Wis. Stat. § 974.06(4) and State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). In Escalona-Naranjo, our supreme court held that “a motion under sec. 974.06 could not be used to review issues which were or could have been litigated on direct appeal.” Id. at 172. The statute, however, does not preclude a defendant from raising “an issue of constitutional dimension which for sufficient reason was not asserted or was inadequately raised in his original, supplemental or amended postconviction motions.” Id. at 184 (emphasis added).

Paulson’s present claims of ineffective assistance of trial counsel and request for a new trial in the interest of justice either were or could have been litigated on direct appeal. Further, he has failed to provide any justification for the omission of claims not previously addressed. Accordingly, the trial court properly denied these claims as procedurally barred under both Wis. Stat. § 974.06(4) and Escalona-Naranjo.

Paulson nevertheless argues that Escalona-Naranjo does not prevent this court from reviewing issues under Wis. Stat. § 901.03(4), governing plain error as applied to evidentiary rulings. Paulson, however, does not raise any issues under § 901.03 and therefore fails to establish how § 901.03(4) applies to the instant facts.

[7] At trial, the jury was instructed that “[a] person commits second-degree sexual assault, as defined in [Wis. Stat. § 940.225(2)(a)] of the Wisconsin Criminal Code, if he has sexual contact with another person without consent and with the intent to become sexually aroused or gratified and by use or threat of force or violence.”

[8] With respect to Paulson’s contention that trial counsel’s inadvertent reference to the “fact of [Paulson’s] imprisonment” was used to establish the “use or threat of force or violence” element of second-degree sexual assault, we are unpersuaded. Apart from our conclusion that trial counsel’s cross-examination inquiry of the victim did not “establish the fact of Paulson’s imprisonment,” Paulson ignores the possibility that the “use or threat of force or violence” element of the offense could have been satisfied by the victim’s testifying that Paulson threw her to the ground and laid on top of her.

[9] The record indicates that Paulson was initially represented by an assistant state public defender and later, by separate trial counsel. The record further indicates that on the recommendation of his pre-trial attorney, Paulson chose not to submit to the polygraph exam.

[10] To the extent that Paulson, in his reply brief, asserts additional arguments that he may have argued before the trial court, issues not briefed before this court are deemed abandoned. See Reiman Assocs.,102 Wis. 2d at 306 n.1. Additionally, it is a well-established rule of appellate practice that the court will not consider arguments raised for the first time in a reply brief. See Northwest Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 294 n.11, 528 N.W.2d 502 (Ct. App. 1995).