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COURT OF APPEALS
DECISION
DATED AND
FILED
March 9, 2010
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 No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Amonte Antoine Jackson,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: daniel
l. konkol, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 FINE, J. Amonte Antoine Jackson appeals the
judgment entered after a jury convicted him of first-degree reckless homicide
while armed, see Wis. Stat.
§§ 940.02(1) & 939.63; armed robbery, see Wis. Stat. § 943.32(2); attempted armed
robbery, see Wis. Stat.
§§ 943.32(2) & 939.32; and being a felon in possession of a
firearm, see Wis. Stat. § 941.29(2)(a). The homicide and robberies were “as party to
a crime,” see Wis. Stat. § 939.05,
and all four crimes were as an “habitual criminal,” see Wis. Stat § 939.62. He also appeals the order denying his
postconviction motion. Jackson claims: (1) his trial lawyer gave him ineffective
assistance; (2) the trial court was biased against him, which he says required its
recusal; and (3) his sentence was excessive.
We affirm.
I.
¶2 Kathy Johnson was sitting in her car and Preston Blackmer was
in the front passenger seat. Jackson and
an accomplice, Lorenzo Harris, walked over to the car. Jackson
pointed a gun at Blackmer through the open passenger-side window; Harris went
to the driver’s side to rob Johnson. Harris
took Johnson’s cash and coat, and then Jackson
shot Blackmer, who died as a result.
¶3 The trial court sentenced Jackson to thirty years of initial
confinement followed by ten years’ extended supervision for the homicide;
fifteen years of initial confinement followed by five years’ extended
supervision for the armed robbery; three years of initial confinement followed
by two years’ extended supervision for his being a felon in the possession of a
firearm; and five years of initial confinement followed by two years’ extended
supervision for the attempted armed robbery—all sentences were made consecutive
to each other. We look at Jackson’s contentions in
turn.
II.
A. Ineffective Assistance.
¶4 Jackson
was questioned by the police and he implicated himself in the crimes. Before the police may question a suspect in
custody, they must warn that person that he or she does not have to say
anything and that the person may have a free lawyer. See Miranda v. Arizona,
384 U.S.
436, 444 (1966). Additionally, any confession must be voluntary. See State ex rel. Goodchild v. Burke,
27 Wis. 2d
244, 258, 133 N.W.2d 753, 760 (1965). The
trial court held a hearing and determined that Jackson’s
statements to the police were admissible because the police gave him the
warnings required by Miranda, and, additionally, that Jackson’s statements to
the police were voluntary. Jackson claims, however, that
his trial lawyer was ineffective because he did not get medical evidence to use
at the hearing; he asserts that his mental condition made his statements to
police involuntary and unreliable. He
argues that the trial court erred in denying his claim without a hearing under State
v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905, 908–909 (Ct. App. 1979) (normally, the trial court must hold an
evidentiary hearing to decide whether a trial lawyer gave his or her client
constitutionally ineffective representation).
We reject Jackson’s
claim.
¶5 To establish ineffective assistance
of counsel, a defendant must show: (1) deficient performance; and
(2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant
must point to specific acts or omissions by the lawyer that are “outside the
wide range of professionally competent assistance.” Id.,
466 U.S.
at 690. To prove prejudice, a defendant
must demonstrate that the lawyer’s errors were so serious that the defendant
was deprived of a fair trial and a reliable outcome. Id., 466 U.S. at
687. Thus, in order to succeed on the
prejudice aspect of the Strickland
analysis, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id., 466 U.S. at 694. We need not address both deficient performance and prejudice if the defendant
does not make a sufficient showing on either one. Id.,
466 U.S.
at 697.
¶6 To be entitled to a Machner hearing, a defendant must
show facts that, if true, would entitle him to the relief he seeks. See State v. Allen, 2004 WI 106, ¶¶9–10,
274 Wis. 2d 568, 576–577, 682 N.W.2d 433, 437–438 (The trial court has the
discretion to deny a postconviction motion for a Machner hearing “if the
motion does not raise facts sufficient to entitle the movant to relief, or
presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief.”). When a defendant claims that his lawyer did
not present evidence, and therefore gave him ineffective representation, the
defendant must allege with specificity what that evidence would have been and
how it would have affected the proceedings.
See State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349–350 (Ct.
App. 1994). Whether a motion was
sufficiently supported to warrant an evidentiary hearing is a legal issue that we
review de novo. State v. Bentley, 201 Wis. 2d 303, 309–310,
548 N.W.2d 50, 53 (1996).
¶7 Jackson’s
claim that his lawyer gave him ineffective representation at the hearing on
whether his statements to the police were admissible fails. As we have seen, he contends that his lawyer
should have gotten a medical expert to testify about his mental condition. Jackson did not,
however, submit any offer of proof as to what medical expert his trial lawyer
could have called and what effect Jackson’s alleged
mental health problems might have had on the trial court’s decision to admit Jackson’s statements to
the police. The trial court properly
denied Jackson’s
claim that his lawyer gave him ineffective representation.
B. Trial Court’s Recusal.
¶8 Jackson
argues that the trial court was biased against him and that this required its recusal. He contends the following statements by the
trial court showed prejudice:
·
When Jackson
sought the appointment of a new lawyer because of what he contended was the
lawyer’s inattentiveness, the trial court said:
“Tell me again how he hasn’t been your attorney September through
January. Don’t lie to me Mr. Jackson, I need
the truth from you.”
·
When Jackson
responded, “I’m trying to give it to you[,]” the trial court said: “I haven’t heard it yet so go ahead.”
·
When Jackson
told the trial court he felt that he was being forced by his lawyer to plead
guilty, the trial court said: “And I
can’t believe [the lawyer] could intimidate you with anything. I have seen you in court before. I have seen you here. I don’t think [the lawyer] could intimidate
you to do anything.”
·
The trial court later said: “Well, Mr. Jackson, I’m telling you I don’t
believe you…. Well, Mr. Jackson I think
you must have misunderstood what [the lawyer] had been saying.”
¶9 Whether a judge was impartial is a question of law that we
review independently. Murray
v. Murray, 128 Wis. 2d 458, 463, 383 N.W.2d 904, 907 (Ct.
App. 1986). All negative comments by a
trial court do not automatically equal bias:
Not establishing bias or partiality … are
expressions of impatience, dissatisfaction, annoyance, (and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed as federal judges,
sometimes display. A judge’s ordinary
efforts at courtroom administration—even a stern and short-tempered judge’s
ordinary efforts at courtroom administration—remain immune.
Liteky v. United States,
510 U.S.
540, 555–556 (1994) (emphasis by Liteky). None of the comments challenged by Jackson establish bias or
animosity. Rather, the comments reflect
the trial court’s attempts to have Jackson tell
the truth in connection with the problems Jackson
said he was having with his lawyer. Further,
the trial court’s reference to having seen Jackson in court is also not proof of bias:
[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible.
Id. at 555. The trial court was not required to recuse
itself from Jackson’s case.
C. Sentencing.
¶10 As we
have seen, Jackson claims that his sentence was
excessive. We disagree.
¶11 Sentencing is within the trial court’s discretion, and our
review is limited to determining whether it erroneously exercised that
discretion. McCleary v. State, 49
Wis. 2d 263, 277–278, 182 N.W.2d 512, 519–520 (1971); see also State v. Gallion, 2004 WI 42, ¶68,
270 Wis. 2d 535, 569, 678 N.W.2d 197, 212 (“circuit court possesses wide
discretion in determining what factors are relevant to its sentencing
decision”). A trial court erroneously
exercises its discretion “only where the sentence is so excessive and unusual
and so disproportionate to the offense committed as to shock public sentiment
and violate the judgment of reasonable people concerning what is right and
proper under the circumstances.” Ocanas
v. State, 70 Wis. 2d 179, 185, 233
N.W.2d 457, 461 (1975).
¶12 The three
primary factors a sentencing court must consider are the gravity of the
offense, the defendant’s character, and the need to protect the public. State v. Harris, 119 Wis. 2d 612, 623, 350 N.W.2d 633, 639 (1984). The sentencing court may also consider a
variety of secondary factors listed in Harris. See id., 119 Wis.
2d at 623–624, 350 N.W.2d at 639.
¶13 The trial
court properly exercised its discretion in sentencing Jackson. It analyzed each of the primary
factors—noting that the crimes were very serious, that Jackson
had a long criminal record even though he was only twenty-seven years old, and that
long-term incarceration was needed to protect the community. Further, although Jackson
contends that his sentences should have been concurrent instead of consecutive,
the trial court did not erroneously exercise its discretion in refusing to give
him a pass for any of his serious crimes. See State v. Stenzel, 2004 WI App 181,
¶22, 276 Wis. 2d 224, 241, 688 N.W.2d 20, 28
(when the crimes involve more than one victim, consecutive sentences are
appropriate).
¶14 Finally, Jackson’s sentence was not excessive. Jackson faced more
than one-hundred and fifty years of imprisonment. The sentence was much less than that. He also challenges the sentences because, as
he puts it, “the witness who testified against [him] did not appear at
sentencing.” He does not explain,
however, how this makes the sentence erroneous or excessive. He also does not explain how or why his alleged
mental-health issues made his sentence an erroneous exercise of the trial
court’s discretion. See Vesely v. Security First National Bank of Sheboygan Trust
Dep’t, 128
Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5
(Ct. App. 1985) (we will not address arguments that are not developed). Finally, Jackson’s
concluory assertion that the trial “court’s animosity
constitutes a new sentencing factor” rests on the same contention of alleged
trial-court bias that we have already rejected.
By the Court.—Judgment and order
affirmed.
Publication
in the official reports is not recommended.