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COURT OF APPEALS
DECISION
DATED AND FILED
March 24, 2009
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal Nos.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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State of Wisconsin,
Plaintiff-Respondent,
v.
Paul Anthony Butler,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: jeffrey a.
kremers, Judge. Affirmed.
Before Fine, Kessler and Brennan,
JJ.
¶1 FINE, J. Paul Anthony
Butler appeals the judgment
convicting him of unlawfully possessing a firearm as a felon, see Wis.
Stat. § 941.29(2)(a),
entered on his no-contest plea. He also
appeals the circuit court’s order denying his motion for postconviction
relief. He argues that he should be able
to withdraw his plea, contending essentially that his lawyers gave him
ineffective assistance because:
(1) they did not seek to suppress the gun he had; and (2) his
first lawyer, who was permitted to withdraw, appeared before the circuit court
for a number of scheduling-type matters without Butler’s presence. We affirm.
¶2 After sentencing, as here, “a defendant who seeks to withdraw
a guilty or nolo contendere plea carries the heavy burden of
establishing, by clear and convincing evidence, that the trial court should
permit the defendant to withdraw the plea to correct a ‘manifest injustice.’” State v. Washington,
176 Wis.
2d 205, 213, 500 N.W.2d 331, 335 (Ct. App.
1993). There is “manifest injustice” when
a defendant has received ineffective assistance of counsel. Id., 176 Wis. 2d at 213–214, 500 N.W.2d at 335.
¶3 A defendant claiming ineffective assistance of counsel must establish that: (1) the lawyer was deficient; and
(2) the defendant suffered prejudice as a result. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the prejudice aspect
of Strickland, the defendant must demonstrate that
the lawyer’s errors were sufficiently serious to deprive him or her of a fair
trial and a reliable outcome, ibid., and “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” id., 466
U.S. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Ibid.
We need not address both aspects if the defendant does not make a sufficient showing
on either one. Id., 466 U.S. at 697. We consider Butler’s claims of ineffective assistance of
counsel in turn.
A. Alleged ineffective assistance in connection
with the suppression motion.
¶4 According to Butler’s
affidavit and police reports submitted by him to the circuit court in support
of his motion to withdraw his plea, this case began when a private security
guard working for a Chuck
E. Cheese
restaurant saw Butler
driving on the Chuck
E. Cheese
property in a way that the security guard thought was reckless. The security guard detained, handcuffed, and
searched Butler, and called the police when he
saw that Butler
was wearing an empty gun holster.
According to one of the reports, a document headed “Detailed History of
Police Call” in connection with the officers’ dispatch to the restaurant, the
police were told that Butler “is wearing a holster for a gun[,] but they [the
persons at Chuck E. Cheese] cannot find the gun. Need help ASAP. Still in the parking lot.” (Some uppercasing omitted.)
¶5 When the police arrived in response to the
man-with-a-possible-gun call, the security guard told one of the officers that,
again as recounted by one of the police reports Butler submitted to the circuit
court, Butler “was driving his vehicle recklessly on the [Chuck E. Cheese]
property and on the city streets around it … in excess of 40 MPH northbound in the parking lot in front of the
business that was full of vehicles and some pedestrians walking to and from the
restaurant.” The security guard also
told the officer, again as recounted by the police report, that the security
guard saw Butler
“make a motion with his arm from his waist to the passenger side of the vehicle
and that he had a dark object in his right hand.”
¶6 One of the responding officers told Butler
that he was being arrested for reckless driving, and his partner searched Butler. The arresting officer then reported that he
saw that Butler
“had a black gun holster attached to the right side of his belt.” According to the officer’s report, Butler told him that the
holster was “for a BB gun that he owns.”
One of the officers then searched Butler’s
car and found a loaded “black .45 caliber semi-automatic pistol” in the car’s
glove compartment.
¶7 Butler’s
affidavit in support of his motion to withdraw his no-contest plea denied that
he was driving recklessly. He averred
that the security guard searched him, saw the holster, and called someone “on
his walkie-talkie,” after which the police arrived. According to Butler, one of the officers “pulled back my
jacket to reveal the empty gun holster.”
¶8 As noted, one of Butler’s
claims on this appeal is that his lawyers should have sought to suppress the
gun. The only person who testified at
the hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979) (hearing to determine whether lawyer gave a defendant ineffective
assistance), as to whether his lawyers gave him ineffective assistance was
Butler’s second lawyer, and she testified that after researching and discussing
the matter with other criminal-defense lawyers in whom she had confidence, she
concluded that the Fourth Amendment did not apply to what the security guard
did. The circuit court excused the first
lawyer from appearing because, as it explained in open court at the start of
the Machner
hearing, “whatever [the first lawyer] did or did not do in terms of
representing Mr. Butler, was not at issue in this case, because Mr. Butler had
a different attorney when he entered his plea … [and] the fact that [the first
lawyer] failed to file a motion to suppress is of no consequence.” The circuit court was correct. See General
Accident Ins. Co. v. Schoendorf & Sorgi, 202 Wis. 2d 98, 104,
105 n.7, 549 N.W.2d 429, 432 & n.7 (1996) (alleged initial negligence
by law firm in drafting pension and profit-sharing plan not a cause of damages
sustained by client after another firm negligently failed to bring plan into
compliance); Seltrecht v. Bremer, 214 Wis. 2d 110,
123–124, 571 N.W.2d 686, 691 (Ct. App. 1997)
(alleged negligence by first lawyer not a cause of injury to client when second
lawyer could have cured it). Butler did not call any of
the Chuck E. Cheese
employees or police officers as witnesses. Thus, we are limited to the materials he
submitted to the circuit court in determining whether a suppression motion
would have succeeded. See State v. Simpson, 185 Wis. 2d 772, 784, 519 N.W.2d 662, 666
(Ct. App. 1994) (a lawyer is not ineffective for not
making a motion that would have been denied).
¶9 Butler’s
affidavit asserts that he would not have pled no-contest “but for the actions
of [his first lawyer] in failing to pursue the suppression motion and the
[circuit court]’s comments and advice of my subsequent counsel leading me to
believe that the suppression motion would not succeed.” The comments by the circuit court referred to
by Butler’s affidavit were made during the hearing when Butler’s first lawyer
withdrew from the case because Butler was unhappy with his representation and,
also, the lawyer perceived that there might be a conflict because he was also
representing someone associated with Chuck E. Cheese. The circuit court told Butler that in light
of the circuit court’s “understanding about Fourth Amendment law,” it would be
“surprised” if a motion to suppress succeeded or if the lawyer Butler was
contemplating hiring to replace his first lawyer “comes to a different
conclusion than [the first lawyer] about the viability of a motion.” The circuit court suggested that Butler should “make sure that you are listening to people
who know what they are talking about, as opposed to other people in the County Jail
who may just think they know what they’re talking about.” The circuit court added: “If the lawyer is saying you don’t have a
motion and if two lawyers tell you you don’t have a motion, you probabl[y]
don’t have a motion.”
¶10 The core of Butler’s claims in connection with his argument
that his circuit-court lawyers were ineffective is his contention that the
security guard and the police violated his Fourth Amendment rights against
unreasonable searches and seizures. We
analyze the various sub-issues in sequence.
¶11 First, Butler
contends that the security guard’s seizure and detention of him and search were
government action that permits the invocation of the exclusionary rule. We disagree.
¶12 It is settled that “[p]rivate searches are not subject to the
Fourth Amendment’s protections because the Fourth Amendment applies only to
government action.” State v. Payano-Roman, 2006 WI 47, ¶17, 290 Wis. 2d
380, 390, 714 N.W.2d 548, 553.
Additionally, although a citizen may detain another citizen “for a
misdemeanor committed in the citizen’s presence and amounting to a breach of
the peace,” City of Waukesha v. Gorz, 166 Wis. 2d 243, 247, 479 N.W.2d 221, 223 (Ct. App. 1991), the
applicable reckless-driving provision of the Wisconsin Statutes, Wis. Stat.
§ 346.62(2) (“No person may endanger the safety of any person or
property by the negligent operation of a vehicle.”), is a forfeiture offense, Wis. Stat.
§ 346.65(1)(a), and thus not a crime, Wis.
Stat. § 939.12, misdemeanor
or otherwise, see Wis. Stat.
§ 939.60. We leave for another
day whether a citizen is privileged to detain another whom he or she sees
breaching the peace by doing something that is not a “crime,” however, because
unless state-action is involved, a defendant detained by another citizen has no
right to suppress the fruits of the citizen’s search. Payano-Roman, 2006 WI 47, ¶17, 290 Wis. 2d
at 390, 714 N.W.2d at 553.
¶13 Payano-Roman is the leading decision in Wisconsin on whether the government was
sufficiently involved with what a private party did to implicate the Fourth Amendment. The following are the controlling
criteria: “‘(1) the police may not
initiate, encourage or participate in the private entity’s search; (2) the
private entity must engage in the activity to further its own ends or purpose;
and (3) the private entity must not conduct the search for the purpose of
assisting governmental efforts.’” Id., 2006 WI 47, ¶18, 290
Wis. 2d at
390, 714 N.W.2d at 553 (quoted source omitted). Further, “a search may be deemed a government
search when it is a ‘joint endeavor’ between private and government
actors.” Id.,
2006 WI 47, ¶19, 290 Wis. 2d at 390, 714 N.W.2d at 553. Whether a search is governed by the Fourth
Amendment and, if so, was reasonable, are questions of law subject to our de novo review, based on any applicable
findings of historical fact by the circuit court that are not clearly
erroneous. Id.,
2006 WI 47, ¶¶16, 24, 290 Wis. 2d at 389, 392, 714 N.W.2d at 552–553,
554. The defendant has the burden to
show by “a preponderance of the evidence” that the search was
governmental. Id.,
2006 WI 47, ¶23, 290 Wis. 2d at 391–392, 714 N.W.2d at 554.
¶14 As we see from Butler’s submissions that are in the Record,
none of the elements of state-action identified by Payano-Roman is present
here. First, the security guard acted
entirely on his own—nothing he did in detaining and initially searching Butler was instigated by
the police. Second, as a Chuck E.
Cheese security guard, it was in his interest and in the interest of his
employer to keep the restaurant’s parking lot safe for other drivers and
pedestrians. Third, there is no evidence
in the Record or in Butler’s offer-of-proof that
indicates that the security guard’s detention and initial search of Butler was “‘for the
purpose of assisting governmental efforts.’”
See id., 2006 WI 47, ¶18, 290 Wis. 2d at 390, 714
N.W.2d at 553 (quoted source omitted).
Finally, what the security guard did in detaining and initially
searching Butler
was not part of some “joint endeavor” with law enforcement. See
id.,
2006 WI 47, ¶19, 290 Wis. 2d at 390, 714 N.W.2d at 553. Thus, nothing the security
guard did violated Butler’s
Fourth Amendment rights against unreasonable searches and seizures.
¶15 Butler
argues, however, that the police, once they arrived, did not have probable
cause to arrest him and, therefore, the search of the car was unlawful. Although a person may be lawfully arrested
for a forfeiture offense that is not a “crime,” and searches incident to
forfeiture arrests are valid, State v. Pallone, 2000 WI 77, ¶43,
236 Wis. 2d 162, 184, 613 N.W.2d 568, 579, given the paucity of the Record as
to what the security guard told the arriving officers about how Butler was
driving (as noted, Butler did not ask for a hearing in connection with his
contention that the officers arrested him unlawfully and the only person who
testified at the Machner hearing was his second lawyer), we need not strain
through what is in the Record to assess, without the benefit of any findings of
fact by the circuit court, on what would be our de novo review of the legal issue, whether the arrest was supported
by the requisite probable cause. See State
v. Sykes, 2005 WI 48, ¶15, 279 Wis.
2d 742, 752, 695 N.W.2d 277, 283 (search incident to an arrest based on
probable cause). Rather, given our authority to affirm the
circuit court for reasons not relied on by it, and, also, on grounds not argued
by the respondent, see B & D Contractors, Inc. v. Arwin
Window Sys., Inc., 2006 WI App 123, ¶4 n.3, 294 Wis. 2d 378,
384 n.3, 718 N.W.2d 256, 259 n.3, we affirm because the police officers
had the right to search Butler’s car for the gun, see Michigan v. Long,
463 U.S. 1032, 1034–1035, 1047–1049 (1983) (police have the right under Terry
v. Ohio, 392 U.S. 1 (1968), to search a car when there is reason to
suspect that it may contain a gun).
¶16 As we have seen, the police were summoned to Chuck E. Cheese
because the security guard saw an empty gun holster and was concerned that
there would also be a gun. Under these
circumstances, the officers’ peripheral search of Butler when they saw the empty holster was
justified. See id., 463 U.S. at
1047 (“When the officer has a reasonable belief ‘that the individual whose
suspicious behavior he is investigating at close range is armed and presently
dangerous to the officer or to others, it would appear to be clearly
unreasonable to deny the officer the power to take necessary measures to
determine whether the person is in fact carrying a weapon and to neutralize the
threat of physical harm.’”) (quoting Terry,
392 U.S.
at 24). Once the officers saw the
holster, the search of Butler’s
car was also fully justified. See id.,
463 U.S. at 1049 (“[T]he search of the passenger compartment of an automobile,
limited to those areas in which a weapon may be placed or hidden, is
permissible if the police officer possesses a reasonable belief based on
‘specific and articulable facts which, taken together with the rational inferences
from those facts, reasonably warrant’ the officers in believing that the
suspect is dangerous and the suspect may gain immediate control of weapons.”)
(quoting Terry, 392 U.S. at 21). Accordingly, any suppression motion would have
been appropriately denied and neither of Butler’s
two lawyers were ineffective for not making one. See State v. Bellows, 218 Wis. 2d 614, 625, 582 N.W.2d 53, 58 (Ct. App. 1998).
B. Alleged ineffective assistance in connection
with the court appearances without Butler.
¶17 Wisconsin Stat. § 971.04(1) establishes when a
defendant must be in court in connection with his or her case:
(1) Except
as provided in subs. (2) and (3), the defendant shall be present:
(a) At the
arraignment;
(b) At trial;
(c) During voir
dire of the trial jury;
(d) At any
evidentiary hearing;
(e) At any view by
the jury;
(f) When the jury
returns its verdict;
(g) At the
pronouncement of judgment and the imposition of sentence;
(h) At any other
proceeding when ordered by the court.
(Footnote added.) Section 971.04(1) “‘recognizes that at
certain hearings, such as arguments on matters of law and calendaring, a
defendant need not be present.’” May
v. State, 97 Wis.
2d 175, 187, 293 N.W.2d 478, 484 (1980) (quoted source omitted). Butler’s briefs on this appeal do not point
to any violation of this statute or how Butler was prejudiced by his not being
present when the circuit court and his first lawyer discussed scheduling and
procedures. Indeed, his argument in
connection with his contention that he should have been present for those
matters is wholly undeveloped and we will not consider it further. See State v. Pettit, 171 Wis. 2d
627, 646, 492 N.W.2d 633, 642 (Ct. App. 1992); see also State v. Jackson, 229 Wis. 2d 328,
337, 600 N.W.2d 39, 43 (Ct. App. 1999) (“A party must do more than simply toss
a bunch of concepts into the air with the hope that either the trial court or
the opposing party will arrange them into viable and fact-supported legal
theories.”), grant of habeas corpus rev’d
sub nom. Jackson v. Frank, 348
F.3d 658 (7th Cir. 2003), cert. denied,
541 U.S. 963.
By the Court.—Judgment and order affirmed.