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COURT
OF APPEALS DECISION DATED AND RELEASED May 15, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3286-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GARY L. BENION,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Winnebago County: BRUCE SCHMIDT, Judge. Affirmed.
BROWN, J. Gary
L. Benion appeals his conviction for operating a motor vehicle after
revocation. He claims that his trial
counsel provided ineffective representation because she failed to introduce
expert testimony or documentary evidence supporting his claim that amnesia
prevented him from recalling that his license was revoked. Benion also contends that his trial counsel
should have raised certain objections while he was being cross-examined by the
prosecutor and during the prosecutor's closing arguments. Because Benion has failed to furnish this
court with any evidentiary support for his allegations, we uphold the trial
court's ruling that Benion's trial counsel acted reasonably and affirm the
conviction.
On August 18, 1994, a
town of Menasha police officer cited Benion for operating a motor vehicle after
revocation. See
§ 343.44(1), Stats. Benion's privileges were revoked by the
Winnebago County Circuit Court in December 1993, after it found him guilty of
operating a motor vehicle while impaired.
The Department of Transportation mailed Benion notice of his revocation
on January 25, 1994.
The case went to trial
on January 17, 1995. Benion stipulated
that he was operating a vehicle on August 18, 1994, and that the DOT revoked
his privileges in January 1994.
The issues at trial thus
narrowed to whether Benion knew that his license had been revoked. See Wis
J I—Criminal 2620. Benion
claimed that he had physical impairments preventing him from remembering
whether his license was valid. He was
assaulted in March 1994, and the injuries apparently were severe enough to
require several days of hospitalization.
He further explained that the injuries caused a significant memory loss
and impaired his ability to recall events.
Benion supported the defense with testimony from his sister whom he had
lived with since leaving the hospital and who had been taking care of him. She confirmed that Benion had memory
difficulties.
The State challenged
Benion's theory during cross- examination.
It probed Benion's ability to partially recall his appearance before the
Outagamie County Circuit Court in July 1994 on another driving while
intoxicated charge. During the State's
cross-examination, Benion also admitted that he could recall other important
facts such as his name, date of birth and previous addresses. The jury subsequently rejected Benion's
defense and found him guilty.
Benion later filed a
postconviction motion alleging ineffective assistance of counsel. He alleged that his trial counsel was
ineffective because she failed to introduce any evidence, such as medical
records, to corroborate his defense.
Benion also complained that his trial counsel failed to raise certain
objections.
While the trial court ordered a Machner[1]
hearing on this motion, Benion's new counsel declined the opportunity to
present any testimony or documentary evidence; the attorney told the trial
court: “I believe the record speaks for
itself ....” The trial court later
denied Benion's motion.
We use a two-pronged
test to evaluate charges of ineffective assistance of counsel. First, we measure if the attorney's
performance was deficient. State
v. Haskins, 139 Wis.2d 257, 262, 407 N.W.2d 309, 311 (Ct. App.
1987). If it is, we must then determine
if the mistakes prejudiced the defense.
Id. When a court
gauges the quality of the attorney's performance, it assesses whether the
attorney's work fell below an objective standard of reasonableness. See State v. Johnson, 133
Wis.2d 207, 217, 395 N.W.2d 176, 181 (1986).
The defendant, however, must aid in the analysis by pointing to specific
acts or omissions, as Benion has, which show that his or her attorney did not
exercise reasonable professional judgment.
See Haskins, 139 Wis.2d at 262, 407 N.W.2d at 311.
Our review of a trial
court's conclusions about ineffective assistance claims involves a mixed
question of law and fact. The trial
court's assessment of what actually happened, the historical facts, will not be
set aside unless clearly erroneous. Id. The overall question of whether the
representation was deficient and prejudicial, however, is a question of law
that we review de novo. Id. We now turn to the errors upon which Benion
rests his claim about the deficiency of trial counsel.
First, we address the
failure of Benion's trial counsel to introduce evidence corroborating his
medical condition. Although Benion
concedes that his trial counsel elicited some testimony which showed that he
had been hospitalized and in a coma for several days after the beating, Benion
nonetheless argues that expert testimony or a medical record was necessary to
bolster his theory. He cites to the
Public Defender's Minimum Attorney Performance Standards and argues that they
require the attorney to investigate the facts supporting the defense's
theories.
The State complains,
however, that this medical evidence never existed and notes that “nowhere in
Defendant-Appellant's Brief is such evidence alleged to exist today.” We have likewise scoured the record looking
for facts to substantiate this claim and have not found any. Because it is not within the record, we will
accept the State's position and assume that this evidence does not exist. See Fiumefreddo v. McLean, 174
Wis.2d 10, 27, 496 N.W.2d 226, 232 (Ct. App. 1993). Therefore, since we have no factual basis to support a conclusion
that Benion's trial counsel could have obtained this corroborating evidence, we
reject Benion's claim that counsel's failure to use this type of evidence was a
sign of her deficient performance.
We now turn to the three
arguments regarding trial counsel's alleged failure to raise certain
objections. Here, we must also affirm
because Benion has again failed to provide evidentiary support. As we noted above, Benion and his appellate
counsel made a seemingly tactical decision not to call trial counsel as a
witness at the Machner hearing.
Benion apparently decided to stand only on the transcript and his
allegations about what trial counsel should have done.
Nonetheless, when a
defendant questions the performance of his or her trial counsel, subsequent
counsel bears the burden of calling trial counsel to the Machner
hearing to develop a record that shows the reasoning behind trial counsel's
decision-making. See State v.
Machner, 92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979). Since Benion's appellate counsel failed to
secure trial counsel's presence at the postconviction hearing and make the
appropriate record, Benion has waived his right to review these issues. See id. We therefore hold that trial counsel's failure to raise these
objections does not constitute deficient performance. We affirm the trial court's decision to deny Benion a new trial
on this ground.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.