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COURT OF APPEALS
DECISION
DATED AND FILED
January 11, 2011
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 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.
Garland H. Hampton,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: rebecca
f. dallet, Judge. Affirmed.
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Garland H. Hampton, pro se, appeals the order denying his
motion for postconviction relief. Hampton argues that the
postconviction court erred when it denied his claims of ineffective assistance
of counsel and newly discovered evidence without holding a hearing. We disagree and affirm.
Background
¶2 In June 1995, following a jury trial, Hampton was convicted of first‑degree
intentional homicide while using a dangerous weapon, as a party to a
crime. He was sentenced to life
imprisonment with a parole eligibility date in 2015. At the time the offense was committed, Hampton was fifteen years
old.
¶3 Hampton
took a direct appeal from his judgment of conviction, and this court
affirmed. See State v. Hampton,
207 Wis. 2d
367, 558 N.W.2d 884 (Ct. App. 1996). The
same attorney represented Hampton
at trial and on direct appeal.
¶4 In October 2003, Hampton
filed a pro se postconviction motion
pursuant to Wis. Stat. § 974.06
(2001-02). In his motion, he alleged the ineffective
assistance of his trial and postconviction counsel for failing to challenge
alleged prosecutorial misconduct. After
the postconviction court denied Hampton’s
motion, he moved for reconsideration.
The postconviction court denied his motion, and this court affirmed.
¶5 In April 2008, Hampton
filed a request for post-trial discovery and inspection. His request was denied, and he filed a notice
of appeal. This court dismissed Hampton’s appeal after he
failed to file his brief within the specified timeframe.
¶6 Court records reveal that Hampton filed a petition for a writ of habeas corpus in June 2009. This court denied his petition and the motion
for reconsideration that followed.
¶7 In January 2010, Hampton
filed a pro se postconviction motion
pursuant to Wis. Stat. § 974.06
and State
ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996). He based his motion on alleged ineffective
assistance of trial and postconviction counsel and on alleged newly discovered
evidence. The alleged newly discovered
evidence consisted of a mental health report prepared by Kenneth Smail, Ph.D.,
which Hampton
claimed counsel should have presented at his Miranda-Goodchild
hearing. The postconviction court concluded that all
of Hampton’s claims, with the exception of his claim of newly discovered
evidence, were barred by State v. Escalona-Naranjo, 185
Wis. 2d 168, 517 N.W.2d 157 (1994).
As for his newly discovered evidence claim, the court reviewed the report
and found that there was not a reasonable probability it would have altered the
outcome of the Miranda-Goodchild hearing.
As a result, the court held that trial counsel was not ineffective for
failing to present the report and postconviction counsel was not ineffective
for failing to challenge trial counsel’s performance. Hampton
now appeals.
Analysis
A. Legal
standards.
¶8 When a defendant files a Wis.
Stat. § 974.06 motion after he has already filed a previous motion or
direct appeal, a sufficient reason must be shown for failure to raise the new
issues. Escalona, 185 Wis. 2d at 185; §
974.06(4). A possible justification for
belatedly raising a new issue is ineffective assistance of the attorney who
represented the defendant in those proceedings.
Rothering, 205 Wis.
2d at 681-82.
¶9 When an ineffective assistance of postconviction counsel
claim is premised on the failure to raise ineffective assistance of trial
counsel, the defendant must first establish trial counsel actually was
ineffective. State v. Ziebart, 2003 WI
App 258, ¶15, 268 Wis.
2d 468, 673 N.W.2d 369. To prevail on a
claim of ineffective assistance of trial counsel, Hampton must show that counsel was deficient
and that the deficiency prejudiced his defense.
See State v. Mayo, 2007 WI 78, ¶33, 301 Wis. 2d 642, 734 N.W.2d 115.
¶10 A defendant seeking a new trial on the basis of newly
discovered evidence must establish, by clear and convincing evidence, that: (1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking to discover it; (3)
the evidence is material to an issue in the case; and (4) the evidence is not
merely cumulative to the testimony introduced at trial. State v. Plude, 2008 WI 58, ¶32, 310
Wis. 2d 28,
750 N.W.2d 42. If the defendant
satisfies all four criteria, the court then examines whether it is reasonably
probable that, with the evidence, a different result would be reached at a new
trial. See id. We review the postconviction court’s decision
on whether to grant a new trial based on newly discovered evidence for an
erroneous exercise of discretion. See id.,
¶31.
B. The postconviction
court properly rejected Hampton’s
claim of ineffective assistance of counsel related to Dr. Smail’s report.
¶11 Hampton asserts that his counsel was ineffective for failing to
present the report of Dr. Smail’s mental health evaluation of him during the Miranda-Goodchild
hearing and on appeal. Hampton
claims that Dr. Smail’s finding that Hampton
had a full-scale IQ of 60 would have shown that he did not have the ability to
voluntarily waive his rights under Miranda. Hampton
argues that Dr. Smail’s report is newly discovered evidence because he only
first discovered it in 2009, and therefore, could not have raised his claim of
ineffective assistance related to the report at the time he filed his 2003 pro se motion for postconviction relief.
¶12 First, we are not convinced that Hampton has satisfied the
newly discovered evidence test and established by clear and convincing evidence
(1) that Dr. Smail’s report was, in fact, discovered after his conviction; and
(2) that he was not negligent in seeking to discover it. See
Plude,
310 Wis. 2d
28, ¶32. Dr. Smail’s written report
dated August 29, 1994, was addressed to Hampton’s
trial counsel. The report reveals that
Dr. Smail examined Hampton at the request of Hampton’s counsel and that he met with Hampton on four separate occasions in August
1994. Thus, Hampton would have known about Dr. Smail’s
testing of him at the time of his Miranda-Goodchild hearing and when
he filed his pro se motion for
postconviction relief in 2003, and he has failed to establish that he was not
negligent in seeking to obtain a copy of Dr. Smail’s written report. Consequently, we conclude that Hampton’s ineffective
assistance claim relating to counsel’s failure to present Dr. Smail’s report is
barred by Escalona. See generally Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App.
1995) (We may affirm on grounds different than those relied on by the trial
court.).
¶13 Moreover, even if we were to accept on its face Hampton’s
representation that he first learned of Dr. Smail’s report in 2009, we agree
with the postconviction court’s resolution of this issue and adopt its
reasoning found in its decision denying Hampton
relief:
With regard to the defendant’s
newly discovered evidence claim, the court has reviewed Dr. Smail’s report and
finds there is not a reasonable
probability it would have altered the outcome of the Miranda-Goodchild
hearing. Although Dr. Smail found that
the results for defendant’s intellectual functioning “suggest at face value”
that it falls into the range for mild mental retardation, he nevertheless
concluded, “These test results seem remarkably low given his reported academic
accomplishments and [his] general presentation during the interviews.” Dr. Smail concluded, “[Hampton]’s general adaptability seems
significantly greater than these scores might predict and, therefore, a
diagnosis of Mild Mental Retardation, which is a direct inference from the test
scores, is not made at this time.”
Based on these conclusions,
this court cannot find that Dr. Smail’s report would have caused [the trial
court] to find any differently at the conclusion of the suppression
hearing. Consequently, the court cannot
find that trial counsel was ineffective for failing to present the report. Hence, postconviction counsel cannot be
deemed ineffective for failing to raise an ineffective assistance of counsel
claim with regard to trial counsel’s performance.
(Citations to Dr. Smail’s
report omitted.) See Wis. Ct. App. IOP VI.(5)(a)
(Oct. 22, 2010) (“When the trial court’s decision was based upon a written
opinion … of its grounds for decision that adequately express the panel’s view
of the law, the panel may incorporate the trial court’s opinion … or make
reference thereto, and affirm on the basis of that opinion.”). Because the results of the suppression
hearing would have been the same, it follows then that the result of Hampton’s trial also would
have been the same.
C. The postconviction court properly concluded that Hampton’s remaining
claims were subject to Escalona’s
procedural bar.
¶14 Hampton also argues that his trial counsel was
ineffective: (1) for withdrawing his
motion to suppress his confession without his permission; (2) for failing to
allow him to testify and for failing to introduce his statements made to police
at his Miranda-Goodchild hearing; (3) for failing to have him examined
so that further findings (in addition to those made by Dr. Smail) could have
been made as to his competence or intelligence; and (4) for failing to argue
that the trial court erroneously exercised its discretion by not considering Wis. Stat. § 938.19(2) at his Miranda-Goodchild
hearing. In addition, Hampton claims that the trial court erroneously
exercised its discretion in ruling at his Miranda-Goodchild hearing.
¶15 We agree with the postconviction court’s assessment that these
claims are procedurally barred pursuant to Escalona because they could have
been brought in Hampton’s
2003 pro se motion for postconviction
relief. In an effort to circumvent Escalona,
Hampton argues
that the same attorney represented him at trial and during postconviction
proceedings and “therefore, counsel was not likely to raise [her] own
ineffectiveness on appeal or in a post[]conviction motion which does constitute
a ‘sufficient reason.’” Hampton’s argument fails as he offers no
reason, much less offer a sufficient one, for his failure to raise the instant claims in his 2003 pro se motion for postconviction
relief.
¶16 In light of the foregoing, Hampton was not entitled to a hearing on his
postconviction motion. See State v. Bentley, 201 Wis. 2d 303,
309-10, 548 N.W.2d 50 (1996) (A circuit court may deny a postconviction motion
without a hearing: (1) if all the facts
alleged in the motion, assuming them to be true, do not entitle the movant to
relief; (2) if one or more of the key factual allegations are conclusory; or
(3) if the record conclusively demonstrates that the movant is not entitled to
relief.).
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.