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COURT OF APPEALS
DECISION
DATED AND FILED
February 9, 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 II
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State of Wisconsin,
Plaintiff-Respondent,
v.
Freeman Earl Bell, Jr.,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Racine County: Gerald
P. Ptacek, Judge. Affirmed.
Before
Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Freeman Earl Bell, Jr., appeals
from an order denying his pro se Wis.
Stat. § 974.06 (2007-08),
postconviction motion to withdraw his guilty plea. He argues that he was entitled to the
appointment of counsel under Wis. Stat. § 974.03(3)(b),
that he has sufficient reasons why his claims were not previously raised, that
he was denied the effective assistance of trial counsel because counsel failed
to meet with and interview him, induced his plea by misrepresenting that he
would receive the same sentence as a codefendant, and failed to investigate
grounds to suppress evidence, that his right to due process was violated by the
prosecutor’s failure to disclose a police interview report, and that his
postconviction counsel abandoned him. We
reject his claims and affirm the order denying his motion for postconviction
relief.
¶2 Bell
entered a guilty plea to party to the crime of armed robbery with use of force
arising from a 2003 bank robbery. Bell
was appointed postconviction counsel after sentencing. A motion for postconviction relief sought
sentence modification. The motion was
denied on March 2, 2006, and no appeal was taken.
¶3 In June 2008, Bell
filed a pro se motion for postconviction relief under Wis. Stat. § 974.06.
Three times he moved for the appointment of counsel. Three times the trial court declined to
appoint counsel. In May 2009 Bell filed two motions to
amend his postconviction motion. An
evidentiary hearing was conducted on Bell’s
motion during which postconviction counsel, trial counsel, and Bell testified. The trial court denied Bell’s motion concluding that his claims were
not supported by the facts. The specific
findings by the trial court will be set forth as necessary to address Bell’s claims.
APPOINTMENT
OF COUNSEL
¶4 Bell
has no constitutional right to the appointment of counsel for a Wis. Stat. § 974.06 motion. State ex
rel. Warren v. Schwarz, 219 Wis. 2d 615, 649,
579 N.W.2d 698 (1998). Section 974.06(3)(b), provides:
“If it appears that counsel is necessary and if the defendant claims or
appears to be indigent, [the court shall] refer the person to the state public
defender for an indigency determination and appointment of counsel under ch.
977.” Here the trial court did not make
a determination of whether a referral should be made. It offered Bell
the chance to ask the state public defender to provide representation and Bell indicated that he
wanted to pursue a request by personal letter to the state public defender. The state public defender refused to appoint
counsel for Bell.
¶5 Bell
argues that upon the state public defender’s refusal to appoint counsel, the
trial court erroneously exercised its discretion not appointing counsel
itself. See State v. Lehman,
137 Wis. 2d
65, 76, 403 N.W.2d 438 (1987) (“The trial court has the authority to appoint
counsel whenever in the exercise of its discretion it deems such action
necessary.”). When there is no
constitutional right to the appointment of counsel, “[a] court may use its
inherent discretionary authority to appoint counsel in furtherance of the
court’s need for the orderly and fair presentation of a case.” Joni B. v. State, 202 Wis. 2d 1, 11, 549
N.W.2d 411 (1996). See
State ex
rel. Chiarkas v. Skow, 160 Wis. 2d 123, 137-38, 465 N.W.2d 625
(1991) (the trial court’s inherent authority to appoint counsel is not based on
an individual’s constitutional right to counsel, but rather based on the need
to serve the interests of the trial court).
¶6 When the trial court addressed Bell’s
first motion for the appointment of counsel, Bell had already filed a lengthy
postconviction motion which included a detailed discussion of five issues in
factual context. Attached to the postconviction
motion were letters Bell
purportedly sent to his postconviction counsel identifying at least one issue
he thought should be pursued and a letter to the state public defender’s office
explaining his complaints about postconviction counsel. Bell
had also filed a motion for the appointment of counsel, motion for subpoenas to
be issued to trial and postconviction counsel, and a motion to produce himself
for personal appearance at the hearing.
The trial court had determined that Bell’s postconviction motion was sufficient
to entitle him to a Machner
hearing. Based on its examination of Bell’s pleadings the trial court found it clear that Bell had an idea about
what he felt was not done by trial counsel and how he was deprived of his right
to representation. This was tantamount
to a finding that the court would not have difficulty in understanding Bell’s claims without the
advocacy of counsel.
¶7 Bell’s
second motion for the appointment of counsel argued he needed counsel because
he had limited access to the law library and a learning disability, no high
school education, and limited knowledge of the law. In addressing the second motion for the
appointment of counsel the trial court recognized that the Machner hearing would
provide Bell an
opportunity to flesh out the record and that his former attorneys would provide
helpful information. The court found
that it had a sufficient understanding of what issues Bell
wanted to raise and it was satisfied that Bell
would be able to ask questions of the attorneys to bring the necessary
information to light.
¶8 A third motion for the appointment of counsel was filed
before the evidentiary hearing. The
motion indicated that Bell
has only a sixth-grade reading level.
For the first time the motion acknowledged that Bell had been assisted by “inmate law clerks”
in preparing motions filed with the court.
Bell
suggested that because others had prepared his motions, he was unfamiliar with
the legal ramifications of his claims. When the motion was heard, the trial court
asked Bell if
anything had changed between the filing of his third motion for the appointment
of counsel and the court’s last denial. Bell replied that he had
added new issues to amend his postconviction motion and had filed a motion to
compel postconviction counsel to turn over discovery. The changes did not cause the trial court to
reconsider its previous denial of counsel.
Once again the court recognized that the presence of both trial and
postconviction counsel at the evidentiary hearing would answer questions about
what happened.
¶9 In addressing all of Bell’s
motions for the appointment of counsel the trial court found that the
appointment of counsel was not necessary for the court’s need for an orderly
and fair presentation of the case. The
court applied the proper standard. The
court properly exercised its discretion in refusing to appoint counsel for Bell on his Wis. Stat. § 974.06 motion.
SUFFICIENT
REASON
¶10 Under Wis. Stat. § 974.06(4),
Bell must
establish a sufficient reason why the claims in his § 974.06 motion were
not raised in his first postconviction motion. See State
v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157
(1994) (all grounds for relief must be raised in a defendant’s original,
supplemental or amended motion); State ex rel. Dismuke v. Kolb, 149 Wis. 2d
270, 274, 441 N.W.2d 253, 254 (Ct. App. 1989) (“[A] prisoner’s failure to
assert a particular ground for relief in an initial postconviction motion bars
the prisoner’s assertion of the ground in a later motion, in the absence of
justification for the omission.”). Bell advances the absence
of a personal and knowing waiver of the issues and the abandonment by and
ineffectiveness of his postconviction counsel as sufficient reason why his
claims were not raised in his first postconviction motion. We need not address his arguments because the
trial court did not impose the procedural bar to Bell’s claims. The trial court conducted a Machner
hearing and ruled on the merits without considering whether Bell had advanced a sufficient reason.
INEFFECTIVE
TRIAL COUNSEL
¶11 To succeed on a
claim of ineffective assistance of counsel, a defendant must show both that
counsel’s representation was deficient and that the deficiency was
prejudicial. Strickland [v.
Washington, 466 U.S.
668,] 687 [(1984)]. 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. A defendant must establish that counsel’s
conduct falls below an objective standard of reasonableness. Id. at
687-88; State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. 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.” State
v. Johnson, 153 Wis.
2d 121, 127, 449 N.W.2d 845 (1990). To
prove constitutional prejudice, “the 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.’” Thiel, 264 Wis.
2d 571, ¶20 (quoting Strickland, 466 U.S. at 694).
Appellate review of an ineffective
assistance of counsel claim presents a mixed question of fact and law. State v. McDowell, 2004 WI 70, ¶31,
272 Wis. 2d
488, 681 N.W.2d 500, cert. denied,
543 U.S. 938 (2004). We will not disturb the trial court’s
findings of fact unless they are clearly erroneous. Id. The ultimate determination of whether the
attorney’s performance falls below the constitutional minimum, however, is a
question of law subject to our independent review. Id.
State v. Cooks, 2006 WI
App 262, ¶¶33-34, 297 Wis.
2d 633, 726 N.W.2d 322.
A. Consultation
and promises.
¶12 Bell argues that his trial
counsel failed to interview him about the case and did not visit Bell a sufficient number
of times so as to meaningfully consult with him. He also claims that trial counsel induced his
plea by promising that he would receive the same sentence as a codefendant.
¶13 There was conflicting testimony on these points. Although trial counsel could not specify the
dates he visited Bell
in jail, he testified that there was a long initial consultation in the
visiting room and visits on more than one occasion. He also indicated he took phone calls from Bell. Counsel denied having promised Bell that he would receive the same sentence as a
codefendant and summarized how he would have explained it was likely a similar
sentence would result but that Bell
would have been told it was entirely the sentencing judge’s decision and
depended on other sentencing factors. Bell testified that he
never once had an opportunity to talk to his trial counsel in private and that
he only talked with counsel for brief moments in the bull pen right before
court appearances. Bell also testified that he never actually
discussed the merits of the case or his statement to police with trial
counsel. He said counsel basically did
not do anything on his behalf. He said
he was led to believe that he would receive a sentence of ten years.
¶14 The trial court found trial counsel’s testimony more credible
than Bell’s. “The credibility of a witness is for the
trial court to determine, and we will not upset such a finding unless clearly
erroneous.” State v. Lukensmeyer, 140
Wis. 2d 92,
105, 409 N.W.2d 395 (Ct. App. 1987). It
concluded that the facts did not support Bell’s
claims. Implicitly this was a finding
that trial counsel had visited and consulted with Bell an adequate number of times. The court specifically found that as an
experienced trial attorney, trial counsel would not have promised Bell the same sentence as
a codefendant.
¶15 The trial court further observed that the plea colloquy
established that Bell
was informed that there was no guarantee of a particular sentence. Additionally, that counsel misjudged the
likely sentence is not a basis for an ineffective assistance of counsel
claim. State v. Provo,
2004 WI App 97, ¶18, 272 Wis. 2d
837, 681 N.W.2d 272. Bell’s claim that trial counsel was
ineffective for failing to visit and consult with him and in promising a
certain sentence fails.
B. Failure
to investigate and move for suppression.
¶16 Bell was riding in a vehicle
stopped by police in Marathon
County and items used in
the bank robbery were seized from the vehicle.
The stop was based on a cigarette butt being tossed from the driver’s
window. Bell believes the stop was the result of
racial profiling as the officers were looking for a dark skinned
African-American man, for an unrelated crime.
¶17 At one point in his police interrogation Bell told the
investigating officer that he did not want to talk anymore and that the officer
should “come back tomorrow and maybe we can talk.” After further questioning, Bell later gave a statement to police. Bell
believes his confession was coerced in violation of his right to remain silent
and the requirement that the police terminate the interrogation upon invocation
of that right. See
State v.
Goetsch, 186 Wis. 2d
1, 7-8, 519 N.W.2d 634 (Ct. App. 1994) (defendant’s declaration to police that
“I don’t want to talk about this anymore,” in the context of the entire
interrogation, was an exercise of his right to remain silent and the
interrogation should have ceased).
¶18 Bell contends that his trial
counsel was ineffective because counsel did not investigate the circumstances
of a vehicle stop and Bell’s
statement to police and then file a motion to suppress. Trial counsel testified that he discussed
with Bell the possibility of moving to suppress
evidence and Bell’s statement and that he was
willing to file those motions if Bell
wanted to. That counsel considered Bell’s claim that the vehicle stop was pretextual was
demonstrated by counsel’s recollection that Bell would not accept that the stop could be
based on the tossing of the cigarette butt.
Trial counsel advised Bell
that he did not believe the motions would make any difference. The trial court found that it was Bell’s decision not to
move to suppress. Once Bell made that decision, trial counsel was
not obligated to pursue suppression. See
State
v. Divanovic, 200
Wis. 2d 210, 225,
546 N.W.2d 501 (Ct. App. 1996) (a defendant cannot complain
that counsel was ineffective for complying with the ethical obligation to
follow the defendant’s decision).
¶19 Bell alleges that trial counsel
failed to read the discovery material produced in Marathon
county cases arising from the stop. Since
trial counsel offered to file suppression motions, trial counsel had sufficient
information to decide that an arguably meritorious motion for suppression could
be filed. “Waiving trial entails the
inherent risk that the good-faith evaluations of a reasonably competent
attorney will turn out to be mistaken either as to the facts or as to what a
court’s judgment might be on given facts.”
McMann v. Richardson, 397 U.S. 759, 770 (1970). By his plea, Bell accepted the risk that counsel’s
evaluation of the likelihood of success of the suppression motion was wrong.
¶20 Even if trial counsel did not have a full grasp of the factual
circumstances of the vehicle stop, Bell
cannot establish prejudice from the failure to move to suppress. In the case of Bell’s codefendant, Courtney Cobbs, this
court addressed a claim that the vehicle stop was unconstitutional. State v. Courtney Leon Cobbs,
2007AP501-CR, unpublished slip op. at 2-3 (Wis. Ct. App. Jan. 23, 2008). We held that there was a legally permissible
basis for the stop. Id. at 3. The same result was reached in Cobb’s appeal
from Marathon county convictions based on the
same vehicle stop. See
State v.
Courtney L. Cobbs, 2007AP380-CR, 2007AP440-CR, unpublished slip op. at
3-4 (Wis. Ct. App. Jan. 15, 2008). There
was no basis to suppress evidence seized as a result of the vehicle stop and Bell was not denied the
ineffective assistance of counsel on that point.
¶21 Bell also fails to establish
prejudice relating to counsel’s performance in respect to Bell’s allegedly coerced confession. Again trial counsel had sufficient
information to offer Bell
the opportunity to move to suppress the confession. Counsel’s determination of arguable merit
does not necessarily mean the motion would have been successful.
¶22 An expression of the right to remain silent only requires the
cessation of questioning when the expression is unequivocal. See State v. Markwardt, 2007 WI App 242,
¶¶35, 36, 306 Wis. 2d 420, 742 N.W.2d 546 (“invocation of the right to
remain silent must be unequivocal and unambiguous to be effective,” “there is
no invocation of the right to remain silent if any reasonable competing inference can be drawn”). Bell’s
assertion that he did not want to talk anymore was not an unequivocal assertion
of the right to remain silent because he invited the possibility of talking
further with police the next day.
Leaving open the possibility of further conversation was important
because the investigating officer informed Bell that he only was available that
day to talk since he could not stay overnight in Marathon county. Bell
did not again attempt to terminate questioning when supplied with that
information. Within the entire context
of the interrogation competing inferences exist from Bell’s assertion and consequently, the police
were not required to stop the interrogation.
See id., ¶36. Counsel’s
advice about a motion to suppress the confession as likely not being successful
was reasonable and Bell
is not prejudiced by trial counsel’s performance on this point.
¶23 We acknowledge Bell’s
contention that the confession was the only evidence against him and had it
been suppressed, he would have insisted on a trial. Bell
points out that the State’s witness list only included the two police officers
who heard his confession and bank personnel who could not identify him. Bell’s reliance on the State’s witness list
as establishing that no other evidence would have been offered at trial is
misplaced. The witness list he cites was
filed the same day as the criminal complaint and at the very early stage of the
prosecution. There is no indication that
the State would have been precluded from filing an amended witness list as the
prosecution progressed and Bell’s
confession was suppressed. Items used in
the robbery were recovered from the vehicle in which Bell was a passenger. The criminal complaint reports the statement
of Bell’s cousin that Bell and his codefendant Cobbs planned a bank
robbery. Where other available evidence
is compelling and places the defendant in significant risk of conviction, there
is no reasonable probability that, but for the error with respect to the
suppression of evidence, the defendant would have refused to plead and would
have insisted on going to trial. See
State
v. Semrau, 2000
WI
App 54, ¶26,
233 Wis. 2d 508, 608 N.W.2d 376.
PROSECUTORIAL
DUE PROCESS VIOLATION
¶24 Bell’s claim that the prosecutor
failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83, 87 (1963), relates to the interview report of the police interrogation. Bell argues
that the prosecution failed to turn over the investigating officer’s interview
report which showed that during the interrogation Bell invoked his right to remain silent. The interview report has subsequently been
destroyed and Bell’s
attempt to obtain it from a codefendant failed.
Whether the prosecution violated a defendant’s right to due process
under Brady is a question of constitutional fact that we review
independently. See State v. DelReal, 225 Wis. 2d 565, 571, 593 N.W.2d 461, 464
(Ct. App. 1999).
¶25 “Brady requires production of information which is within the
exclusive possession of state authorities.” State v. Sarinske, 91 Wis. 2d 14, 36, 280
N.W.2d 725 (1979); see also Wis. Stat. § 971.23(1). Information that during the interrogation Bell said he did not want
to talk anymore was not exclusively within the possession of the
prosecution. See
State v.
Armstrong, 110 Wis. 2d
555, 580, 329 N.W.2d 386 (1983) (evidence not in exclusive possession of the
State when the defendant has knowledge and access to the evidence). Bell
himself knew he had made that statement.
He could relate it and whatever else occurred during the interrogation
to his attorney. The interview report
served only to document the spoken word.
Bell had
access to the investigating officer to ascertain what occurred during the
interrogation. “Exclusive control will
not be presumed where the witness is available to the defense and the record
fails to disclose an excuse for the defense’s failure to question him.” Sarinske, 91 Wis. 2d at 36.
¶26 We recognize that in State v. Sturgeon, 231 Wis. 2d 487,
498-99, 605 N.W.2d 589 (Ct. App. 1999), the State was held to be in exclusive
possession of information that in police interviews Sturgeon had denied any
knowledge of the intended criminal enterprise of his co-actors. In Sturgeon the court observed that the
defense’s failure to question the police officer about exculpatory statements
made during interview was excusable because the scope of the preliminary
hearing and the suppression hearing did not provide an opportunity to elicit
the officer’s confirmation that exculpatory statements were made. Id.
at 499-500. Here Bell elected to not pursue a motion to
suppress his confession and gave up the opportunity to have the police officer
corroborate the known fact that he told the officer that he did not want to
talk anymore.
¶27 Additionally, Sturgeon involved direct exculpatory
evidence—Sturgeon’s denials that he was aware of the intended crime. The court stated, “we see a marked difference
between a defendant’s exculpatory version of an event presented to his lawyer
and the fact that the prosecution has in its exclusive possession evidence
which independently corroborates that version.”
Id.
at 500. Bell’s claim relates only to information
about what occurred during the interview to produce his confession. The information does not directly bear on his
guilt or innocence and is not exculpatory.
See
State
v. Harris, 2004 WI 64, ¶12 n.9, 272 Wis. 2d 80, 680 N.W.2d 737. Sturgeon does not apply here. The prosecution was not required to disclose
the interview report and did not violate Bell’s
right to due process.
INEFFECTIVE POSTCONVICTION/APPELLATE COUNSEL
¶28 Bell
contends that his postconviction counsel was ineffective for not investigating
and discovering the issues which trial counsel failed to pursue and asserting
trial counsel’s ineffectiveness. We need
not address this particular claim because trial counsel was not ineffective.
¶29 Bell also contends that after
the postconviction motion was denied, postconviction counsel abandoned Bell and did not file a
requested no-merit appeal. This aspect
of postconviction counsel’s performance really falls within the purview of this
court under State v. Knight, 168 Wis. 2d
509, 522, 484 N.W.2d 540 (1992). See
State
ex rel. Smalley v. Morgan, 211
Wis. 2d 793, 799-800, 565 N.W.2d 805, 809 (Ct.
App. 1997),
criticized on other grounds by State
ex rel. Coleman v. McCaughtry, 2006 WI 49, ¶29, 290 Wis. 2d 352,
714 N.W.2d 900, opinion clarified,
2006 WI 121, 297 Wis. 2d 587, 723 N.W.2d 424. Our review is aided by the fact-finding that
has already been conducted by the trial court about what appointed counsel did
or did not do. See State ex rel. Ford v. Holm,
2004 WI App 22, ¶30, 269 Wis. 2d 810, 676 N.W.2d 500 (where a defendant
claims to have not consented to counsel’s closing the file without further
court action an evidentiary hearing may be required to resolve the
dispute).
¶30 At the outset we make clear that it is not the law in Wisconsin that
postconviction or appellate counsel must file a formal motion to withdraw in
every case in which a defendant decides to forego a postconviction motion or an
appeal. Such a requirement was rejected
by the supreme court in State ex rel. Flores v. State, 183 Wis. 2d 587, 617,
516 N.W.2d 362 (1994). Appointed counsel
does not render ineffective assistance of counsel simply by closing the
defendant’s file without first obtaining court permission to withdraw. Ford, 269 Wis. 2d 810, ¶31.
¶31 The trial court found that Bell did not communicate to appointed counsel
a desire for a no-merit appeal. It found
appointed counsel presented Bell with an option
letter and Bell
never responded. These findings are not
clearly erroneous. Trial counsel testified
that following the March 2, 2006 postconviction motion hearing she gave Bell an options letter which gave Bell the opportunity to request a no-merit
appeal. When counsel forwarded a copy of
the order denying the postconviction motion to Bell she also referred Bell to the options letter
and the twenty-day deadline for proceeding further. Although Bell
attached to his motion an original handwritten letter dated March 17, 2006 in
which Bell told
counsel to “go [a]head and file the no-merit report,” the trial court could
determine that the letter was never sent or was produced at some later date in
anticipation of litigation. The trial
court found counsel’s testimony that she never received correspondence
requesting a no-merit appeal credible.
Based on the findings of fact, we conclude that Bell was not denied the effective assistance
of appointed appellate counsel. A
defendant may agree with appellate counsel’s assessment that an appeal has no
merit and may voluntarily forego an appeal.
Flores, 183 Wis. 2d
at 617.
CONCLUSION
¶32 A plea may be withdrawn if the defendant establishes the
existence of a manifest injustice by clear and convincing evidence. See State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50, 54
(1996). The manifest injustice test is
met if the defendant was denied the effective assistance of counsel. See id. Bell
has not established that he was denied the effective assistance of counsel or
any other reason for plea withdrawal.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.