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COURT OF APPEALS
DECISION
DATED AND FILED
October 26, 2010
A.
John Voelker
Acting 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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DISTRICT III
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State of Wisconsin,
Plaintiff-Respondent,
v.
Stephen C. Sherman,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Brown County: DEE R.
DYER, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 PER CURIAM. Stephen Sherman, pro se, appeals
an order denying his Wis. Stat. § 974.06
motion for postconviction relief. Sherman argues the
circuit court erred by denying his motion without an evidentiary hearing. He contends he received ineffective assistance
of postconviction counsel and also argues new factors warrant sentence
modification. We reject Sherman’s arguments and
affirm.
BACKGROUND
¶2 Sherman was charged with
multiple counts of sexual assault of a child in both Outagamie and Brown Counties. Sherman pled
no contest, and the Brown and Outagamie
County cases were
consolidated for sentencing.
¶3 In Outagamie County case No. 2005CF781, Sherman was convicted of repeated
second-degree sexual assault of the same child, contrary to Wis. Stat. § 948.025(1)(b), with a
sentence of fifteen years’ initial confinement and fifteen years’ extended
supervision, and sexual assault of a student by school staff, contrary to Wis. Stat. § 948.095(2), with a
sentence of five years’ initial confinement and five years’ extended
supervision. In Brown
County case No. 2005CF991,
Sherman was convicted of sexual assault of a student by school staff, contrary
to § 948.095(2), with a sentence of five years’ initial confinement and
five years’ extended supervision, and two counts of second-degree sexual
assault of a child, contrary to Wis.
Stat. § 948.02(2), with sentences for each equaling ten years’
initial confinement and ten years’ extended supervision. The court ordered that all the sentences be
served concurrently.
¶4 Sherman
moved for postconviction relief, seeking resentencing. He argued the circuit court failed to consider
applicable sentencing guidelines, made unsupported findings about his mental
health, and failed to consider sentences in other sexual assault cases
involving teachers. The circuit court
denied Sherman’s
motion, and we affirmed. See State v. Sherman, 2008 WI App 57, 310 Wis. 2d 248, 750 N.W.2d
500.
¶5 Sherman,
pro se, subsequently filed a “Postconviction Motion to Vacate Judgments of
Conviction and Modify Sentence or Alternatively Resentence Defendant,” pursuant
to Wis. Stat. § 974.06. Sherman
argued the attorney who represented him on his first postconviction motion and appeal
was ineffective by: (1) failing to argue the circuit court should
have considered the sentencing guideline for an analogous crime; and (2)
failing to argue ineffective assistance of trial counsel. Sherman
also argued new factors warranted sentence modification. The circuit court denied Sherman’s
motion without an evidentiary hearing, and Sherman now appeals.
DISCUSSION
¶6 Whether a
postconviction motion alleges sufficient facts to entitle the defendant to a
hearing for the relief requested is subject to a mixed standard of review. State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568,
682 N.W.2d 433. First, we determine
whether the motion alleges sufficient facts that, if true, would entitle the
defendant to relief. Id.
This is a question of law that we review independently. State v. Bentley, 201 Wis. 2d 303, 310, 548
N.W.2d 50 (1996). If the motion raises
such facts, the circuit court must hold an evidentiary hearing. Id. “However, if the motion does not raise facts
sufficient to entitle the defendant to relief, … presents only conclusory
allegations, or if the record conclusively demonstrates … the defendant is not
entitled to relief, the circuit court has the discretion to grant or deny a
hearing.” Allen, 274 Wis. 2d 568, ¶9. We review the court’s discretionary decision
under the deferential erroneous exercise of discretion standard. Id.
I. Ineffective assistance of
postconviction counsel
¶7 To maintain an ineffective assistance of counsel claim, a
defendant must show that counsel’s performance was deficient, and that this
deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
To establish deficient performance, the
defendant must show that counsel’s representation fell below objective
standards of reasonableness. Id. at 687-88. To establish prejudice, the defendant must
show “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id.
at 694. We may dispose of an ineffective
assistance of counsel claim based on either deficient performance or prejudice,
and if we conclude the defendant has failed to prove one prong, we need not
address the other. See id. at 697.
¶8 Sherman first contends his postconviction counsel was
ineffective by failing to argue that the circuit court erred when it sentenced
him on the repeated second-degree sexual assault of the same child charge
without considering the sentencing guideline for an analogous crime. At the time Sherman was sentenced, Wis. Stat. § 973.017(2)(a)
(2005-06), required that a court imposing a sentence for a felony consider “the
sentencing guidelines adopted by the sentencing commission under s. 973.30 or,
if the sentencing commission has not adopted a guideline for the offense, any
applicable temporary sentencing guideline adopted by the criminal penalties
study committee created under 1997 Wisconsin Act 283.” Sherman
concedes no sentencing guideline was ever promulgated for the offense of
repeated second-degree sexual assault of the same child. However, Sherman argues that before sentencing him on
that charge, the circuit court was required to consider the sentencing
guideline for the analogous offense of second-degree sexual assault of a child.
¶9 We do not find Sherman’s
argument convincing. Under Wis. Stat. § 973.017(2)(a)
(2005-06), a sentencing court was only required to consider guidelines that
were specifically applicable to the crime for which the sentence was imposed. The statute did not suggest, much less
require, that a court consider guidelines for analogous crimes. Thus, the sentencing court in this case did
not err by failing to do so.
¶10 Sherman
contends the “most analogous guideline” approach is used by federal district
courts when no federal sentencing guideline exists for a particular offense. See,
e.g., United States v. Jones, 278 F.3d 711, 716 (7th Cir. 2002). However, Wisconsin courts are not bound by
federal sentencing guidelines, State v. Kaczynski, 2002 WI App 276,
¶11 n.1, 258 Wis.
2d 653, 654 N.W.2d 300, or by federal cases dealing with federal rules that are
different from Wisconsin rules, see, e.g.,
State
v. Copening, 103 Wis.
2d 564, 576, 309 N.W.2d 850 (Ct. App.
1981). Consequently, the sentencing
court was not required to use the federal “most analogous guideline” approach
when sentencing Sherman.
¶11 Sherman also relies on State
v. Jorgensen, 2003 WI 105, ¶27, 264 Wis. 2d 157, 667 N.W.2d 318, which
held it was not error for a court to consider an analogous sentencing guideline
when there was no guideline specific to the offense for which the defendant was
being sentenced. However, Jorgensen
does not stand for the proposition that a sentencing court is required
to consider analogous guidelines. To the
contrary, the supreme court cautioned that because the legislature specifically
delineated the offenses to which guidelines applied, a sentencing court should
not apply the guideline for one offense as the sole basis for a sentence on a
different offense. Id.
¶12 We conclude Sherman’s
analogous sentencing guideline argument is without merit. Failing to make a meritless argument does not
render counsel’s performance deficient. State
v. Toliver, 187 Wis.
2d 346, 360, 523 N.W.2d 113 (Ct. App. 1994). Consequently, postconviction counsel’s
failure to raise the analogous sentencing guideline argument did not constitute
ineffective assistance. Because Sherman’s postconviction motion did not allege sufficient
facts that, if true, would entitle Sherman
to relief on this basis, the circuit court did not err by denying his motion
without a hearing.
¶13 Sherman
next argues his postconviction counsel was ineffective by failing to argue
ineffective assistance of trial counsel.
Sherman contends his trial counsel should
have presented evidence at sentencing regarding MySpace.com postings by Caitlin
R., one of Sherman’s
victims. In a letter read at sentencing,
Caitlin stated she was in an emotional prison because of what Sherman had done to her. She wrote that she lost friendships with
others her age, was barely able to leave home, could not go to school, and hid
under layers of clothing and makeup. Caitlin’s
mother similarly testified Caitlin was a captive in her house, feared the
outside world, and did not go to social events.
It is undisputed that the court considered these statements in
sentencing Sherman. Sherman alleges the
MySpace postings would have rebutted this testimony, because they contained
“provocative pictures” of Caitlin, discussion of “personal and sexually
explicit matter[s],” and comments about going to school, dating, and
socializing with friends.
¶14 Sherman’s
postconviction motion contained only conclusory allegations about the MySpace
postings. In an affidavit attached to the
motion, Sherman’s
mother, Claudia Starr, alleged her daughter printed the MySpace postings from
the internet. However, the postings
themselves were not attached to the affidavit.
As a result, there is no way to know if Starr’s statements about the
postings are accurate. Furthermore,
although Starr alleged the MySpace posts were printed from the internet between
October 2005 and June 2006, there is no indication of when Caitlin actually
posted the material. Thus, it is
possible the posts were made long before sentencing and reflect circumstances
that had since changed. Without knowing
when the posts were made, it is impossible to know whether they actually
contradict anything in Caitlin’s letter or in her mother’s testimony at
sentencing.
¶15 A postconviction motion requires more than conclusory
allegations to succeed. See Allen, 274 Wis. 2d 568, ¶15. Because Sherman’s postconviction motion
contained only conclusory allegations about Caitlin’s MySpace postings, Sherman
has not shown how he might have been prejudiced by his trial counsel’s failure
to bring the posts to the sentencing court’s attention. Sherman’s
motion therefore failed to allege sufficient facts to warrant relief on his ineffective
assistance claim. Accordingly, the
circuit court did not erroneously exercise its discretion by denying Sherman’s motion without
a hearing.
II. New factors warranting
sentence modification
¶16 Sherman
also argues new factors exist warranting modification of his sentence. “The purpose of … sentence modification is to
correct an unjust sentence.” State
v. Koeppen, 2000 WI App 121, ¶33, 237 Wis. 2d 418, 614 N.W.2d 530. “Before a sentence will be modified, the defendant
must demonstrate, by clear and convincing evidence, that there is a new factor
justifying the court’s reconsideration.” Id.
(citation omitted). A new factor is a
fact or set of facts highly relevant to the sentence determination, that was
not known to the trial court at the time of original sentencing because it was
not then in existence or was “unknowingly overlooked” by all parties. Rosado v. State, 70 Wis. 2d 280, 288, 234
N.W.2d 69 (1975). Additionally, a new
factor must frustrate the purpose of the original sentence. State v. Michels, 150 Wis. 2d 94, 99, 441
N.W.2d 278 (Ct. App. 1989). Whether a
new factor exists is a question of law that we review independently. State v. Lechner, 217 Wis. 2d 392, 424, 576
N.W.2d 912 (1998).
¶17 Sherman
first argues a new factor exists because he was diagnosed with a dependent
personality disorder by psychiatrist Stephen Hull after he was sentenced. However,
at sentencing, Sherman submitted a report by psychologist
Gerald Wellens, who had also diagnosed Sherman
with a dependent personality disorder. The sentencing court
discounted Wellens’ opinion, preferring instead to rely on the testimony of the
victims and their families that Sherman
was a controlling, manipulative, and obsessive person. Because the court was aware of Sherman’s original diagnosis at the time of sentencing, Sherman’s subsequent
diagnosis with the same condition is not a new factor. Additionally, Sherman’s postconviction diagnosis does not
frustrate the purpose of his sentence, given that the court explicitly discounted
the original diagnosis when sentencing him.
¶18 Sherman
also argues the statement of Patricia R., the aunt of one of his victims, is a
new factor. Patricia signed a statement
asserting that her niece, Tamara R., “aided [Caitlin] in writing her character
letter about Steve Sherman.” According
to Sherman,
Patricia’s statement shows that Tamara had “undue influence” over Caitlin, thereby
lessening the credibility of Caitlin’s sentencing letter. However, Patricia does not suggest that
anything Caitlin wrote was false. Nothing
in Patricia’s statement supports Sherman’s
contention that Tamara exerted “undue influence” over Caitlin. The mere fact that Tamara helped Caitlin
write her sentencing letter is not highly relevant to the original sentence
determination. Thus, even if true, Patricia’s
statement would not constitute a new factor.
¶19 Sherman’s
postconviction motion did not allege sufficient facts that, if true, would
entitle him to sentence modification. Neither
Sherman’s
postconviction diagnosis nor Patricia R.’s statement is a new factor. As a result, the circuit court did not
erroneously exercise its discretion by denying Sherman’s postconviction motion without a
hearing.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.