COURT OF APPEALS DECISION DATED AND FILED May 4, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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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 |
IN COURT OF APPEALS |
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DISTRICT II |
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State of Plaintiff-Respondent, v. Roberto I. Servantez, Defendant-Appellant. |
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APPEAL
from judgment and an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1 PER CURIAM. Roberto I. Servantez pled guilty to threats to injure, as a repeat offender, contrary to Wis. Stat. §§ 943.30(1) and 939.62(1)(b) (2009-10).[1] He appeals from the judgment of conviction, and from the order denying his postconviction motion to withdraw his plea and for a new trial. Servantez argues that defense counsel’s failure to advise him before he pled that an affirmative defense was available to him constituted ineffective assistance, rendered his plea defective and resulted in the real controversy not being tried. We affirm on the basis that counsel had no clear duty to inform him of the defense.
¶2 Servantez was in the
¶3 The State charged Servantez with threats to injure, stalking and misdemeanor telephone harassment, all as a repeater. He ultimately pled guilty to threats to injure; the other charges were dismissed and read in. He received a five-year prison sentence, with three years’ initial confinement.
¶4 Servantez filed a postconviction motion to withdraw his plea and for a new trial. He contended that his trial counsel was ineffective for not raising the affirmative defense of defense of property; that his plea was not knowing, intelligent and voluntary because he was unaware of the defense; and that the real controversy was not fully tried because the defense had not been considered.
¶5 Both Servantez and defense counsel testified at the evidentiary
hearing. The court concluded that the
affirmative-defense argument had no merit because there was no imminent threat
to Servantez’s property to justify raising the issue of privilege. The court concluded that counsel therefore
could not be held to have performed deficiently. Servantez appeals.
¶6 “Whoever … threatens … any injury to the person … of another, with intent thereby to extort money … or with intent to compel the person so threatened to do any act against the person’s will” is guilty of a crime. Wis. Stat. § 943.30(1). Servantez concedes that the message to Morales constitutes a threat to injure under the statute. He asserts, however, that his criminal conduct is privileged under Wis. Stat. § 939.49(1) governing Defense of Property.[2]
¶7 Servantez contends defense counsel’s performance was defective because counsel acknowledged that he did not consider this statutory defense. Servantez contends the failure also was prejudicial because it unnecessarily led him to plead guilty.
¶8 When claiming ineffective assistance of counsel, a defendant
must establish deficient performance and prejudice. Strickland v.
¶9 A claim of ineffective assistance of counsel presents a mixed
question of fact and law. State
v. O’Brien, 223
¶10 For several reasons, counsel had no clear duty to raise defense
of property as an affirmative defense. First, the record does not establish that the
rims, and thus the money, if, in fact, Morales sold the rims, even belonged to
Servantez. The trial court observed at
sentencing:
[Servantez is] demanding Miss Morales to give him his money back, and here’s how it came about. He got sent to jail. He’s got assets. He’s got $18,000 worth of cars, rims, stereo, and speakers. $18,000 worth. At a time when he is seventeen thousand dollars in arrears on his child support, and it’s ironic that the vehicles he has, [“]my money[”], the vehicles are registered in Stephanie’s name to avoid them being taken by child support.
¶11 The “Offender’s Version” portion of the presentence
investigation report was the source of the court’s comment. Servantez had the opportunity to review and
contest any information in the PSI that he believed to be inaccurate. Servantez did not challenge it, perhaps
because it came from his own account.
Aside from his claim that the rims were his, nothing in the record
refutes the implication that Morales, not he, was the registered owner. We will not consider assertions of fact that
are not part of the record. See Jenkins v. Sabourin, 104
¶12 Second, to justify criminal acts on the basis of self-defense,
defense of others, or defense of property, danger must be “imminent.”
¶13 Third, threatening Morales that he would have his Vice Lord
“brothers” “fuck [her] up” likely would have taken Servantez’s threat outside
the purview of the privilege Wis. Stat. § 939.49(1)
affords. A person may threaten only the degree
of force “reasonably believe[d] … necessary” to terminate the interference.
¶14 Absent a clear duty to raise defense of property as an
affirmative defense, counsel was not ineffective.
¶15 The ineffective assistance of counsel issue being dispositive, we need not address Servantez’s other arguments.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2009-10 version unless noted.
A person is privileged to threaten … force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one’s property.