COURT OF APPEALS DECISION DATED AND FILED November 12, 2008 David R. Schanker 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 WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Thomas J. Blake,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Thomas J. Blake appeals a judgment convicting him, upon a plea of no contest, of first-degree intentional homicide and an order denying his motion for postconviction relief. He argues that the trial court misused its discretion in denying his presentence motion to withdraw his plea and that both his pre-plea and post-plea counsel rendered ineffective assistance, the former because they did not inform him of the lesser-included defense of reckless homicide before entering into his plea, and the latter because he failed to present mitigation evidence and to object to an unduly prejudicial victim impact statement. None of his arguments are persuasive. We affirm the judgment and the order.
¶2 The State charged Blake with first-degree intentional homicide, contrary to Wis. Stat. §§ 940.01(1)(a) and 939.50(3)(g), and hiding a corpse, as party to a crime, contrary to Wis. Stat. §§ 940.11(2), 939.50(3)(g) and 939.05 (2005-06).[1] According to the complaint, Blake’s statement, and affidavits in support of search warrants, Blake related that he invited Christina Ross to his apartment, sexual contact ensued and Ross agreed to do “something kinky.” Blake handcuffed her, turned her face down, lay on top of her and wound an extension cord four times around her neck. As Ross struggled for about ten minutes, Blake tightened the cord and covered her mouth when she tried to scream. Blake held the cord around her neck for another half hour to make sure she was dead. Blake then told a friend who was in another room that he “just killed Christina.” They put Ross’s sheet- and duct tape-wrapped body in the trunk of Ross’s car and abandoned the car in a parking lot. Subsequent investigation revealed that Blake said his girlfriend knew he had talked in the past about killing Ross and that he wrote in his journal about an unrelenting “thirst for killing.” Blake also had told his roommate he would like to kill someone and said numerous times he could do it with “things around the house.” Blake eventually pled no contest to first-degree intentional homicide, unsuccessfully sought presentencing to withdraw his plea, and moved, also unsuccessfully, for postconviction relief on grounds of ineffective assistance of counsel. Blake appeals.
1. Plea entry and withdrawal
¶3 Public defenders John Kuech and Steve Smits initially represented Blake. The parties agreed that Blake would plead no contest to first-degree intentional homicide, the hiding-a-corpse charge would be dismissed and read in and the State would recommend no parole eligibility for his natural life, capped at sixty years. Kuech and Smits said that Blake told them for the first time after entering his plea that Ross’ death was the result of “sex gone bad.” They withdrew at Blake’s request and Leonard Kachinsky was appointed. Blake told Kachinsky that Kuech and Smits did not believe that Ross died during an attempt to enhance her sexual “high.” Still presentence, Blake moved to withdraw his plea on grounds that he entered it without having been advised of the possible lesser-included offense of reckless homicide. The court concluded that Blake did not present a fair and just reason for withdrawing his plea and denied the motion.
¶4 A defendant seeking to withdraw a plea before sentencing must
present a credible fair and just reason and rebut evidence that the State will
be substantially prejudiced by the plea withdrawal. State v. Rhodes, 2008 WI App 32, ¶7,
307
¶5 Kuech acknowledged that Blake told him he and Ross had been sexually active in the past and that she liked “rough sex,” and Blake’s statement indicated Ross had acceded to “something kinky.” Kuech also testified that in first reading the complaint “this idea of autoerotic[2] sex jumps out at you” but they asked Blake numerous times “whether he had sex or whether sex was going on at that time and up through the time of the plea [Blake] denied that.” He testified that in the at least fifteen or twenty conferences they had with Blake, Blake never said Ross’s killing was accidental. Kuech said he did not ask Blake directly if the handcuffs and extension cord were part of sex play because he did not want to “plant that [idea] if it didn’t happen.” He and Smits reviewed the jury instruction with Blake, going over every element the State would have to prove, including intent. Both said Blake appeared to understand.
¶6 Blake also acknowledged that he gave police a four-page
statement in which he admitted keeping the cord around Ross’s neck for a half
hour to “make sure she was dead,” signed each page and specifically initialed
the sentence, “We weren’t having sex at this point.” Some of his testimony was to the contrary,
however. He claims he told Kuech and
Smits about the sexual aspect a month or two before the plea hearing, but that
they did not believe him and it “would provide no defense in any manner.” The court stated that Blake could not raise a
new defense post-plea, implicitly finding Blake’s testimony less credible. Credibility assessments of this sort are crucial
to a determination of whether the evidence offered in favor of a plea
withdrawal constitutes a fair and just reason.
¶7 Moreover, Blake entered a knowing, intelligent and voluntary
plea pursuant to a thorough colloquy, making his burden even higher on
appeal. See Jenkins, 303
¶8 Counsel must search out feasible defenses, but the credible evidence is that Blake did not provide Kuech and Smits with the basic facts suggesting that Ross’s death was accidental. Reason dictates that a person of average intelligence, like Blake, would have seized upon one of his many chances to do so. Kuech and Smits had no obligation to propose a theory that ran counter to the facts Blake gave and other information they had. Blake has not shown by a preponderance of the evidence a fair and just reason to withdraw his plea.
2. Post-conviction proceedings
¶9 At sentencing, eight of Ross’s friends or family members made statements requesting a sentence of life without parole. Ross’s mother asked to be allowed to also show a PowerPoint photo montage of Ross’s life accompanied by a recorded musical tribute written and sung by one of Ross’s friends. The court voiced its reservations but assented when Kachinsky, who had not previewed it, expressed no objection. After hearing the victim impact statements and considering the recommendations of the presentence investigation (PSI) report, the State and the defense, the court sentenced Blake to life in prison without the possibility of extended supervision.
¶10 Represented by newly appointed appellate counsel, Blake moved for postconviction relief. Blake petitioned for a new trial and/or resentencing on grounds that pre-plea counsel were ineffective for failing to explain the distinction between reckless and intentional homicide, and that post-plea counsel was ineffective at sentencing for failing to argue mitigating factors or to preview or object to the PowerPoint presentation.
a. Ineffective assistance of pre-plea counsel
¶11 A defendant who seeks to withdraw a no-contest plea after
sentencing carries the heavy burden of establishing by clear and convincing
evidence that the trial court should permit withdrawal of the plea to correct a
“manifest injustice.” State
v. Krieger, 163
¶12 Under Strickland, a defendant must show
that counsel’s performance was both deficient and prejudicial. Strickland, 466
¶13 Blake contends the use of handcuffs and an extension cord around Ross’s neck, her state of partial undress and his claim that they had sex earlier are consistent with a consensual sexual encounter. Also, Blake’s mother, Mary Jo, submitted a supporting affidavit in which she claimed Ross once told her she enjoyed sex involving handcuffs, whips and “S&M” and asked whether Mary Jo liked using handcuffs during sexual activity. Kachinsky testified that he would have felt duty-bound to question Blake further to see whether the lesser-included-offense defense existed.
¶14 Kuech testified at the Machner[3]
hearing that nothing Blake told him and Smits supported advising of the
possibility of a lesser-included offense because, although they repeatedly asked
Blake if “sex was going on at that time[,] … up through the time of the plea he
denied [it].” Kuech did not bring it up
on his own so as not to “plant any facts in anybody’s head as to what happened
to make their defense better.” Kuech
also testified that in their “numerous” telephone conversations Mary Jo never
said anything about Ross discussing her sexual interests, and that he thus
deemed pleading no contest and arguing for parole eligibility to be the most
prudent strategy. Given the
countervailing evidence and Blake’s plea, we conclude “consistent with” a
consensual sexual encounter is insufficient.
Kachinsky’s opinion to the contrary notwithstanding, ineffective
assistance of counsel cases should be limited to situations where the law or
duty is clear such that reasonable counsel should know enough to raise the
issue.
¶15 The trial court found Kuech’s and Smits’ testimony to be
“overwhelming” and corroborated by Blake’s statement to the police, discovery
materials and statements to others indicating a general desire to kill. It also found that Kuech’s and Smits’
credibility far outweighed Blake’s, and that Kuech did not have factual reasons
to consider the possibility of reckless homicide or an obligation to “plant”
the notion of that defense. These
determinations are not clearly erroneous.
We are not swayed by late-stage testimony or suggestions that Ross’s
death was consequent to “sex gone bad.”
It is conceivable that Mary Jo wanted to help her son, that Blake would
rather his mother believe that he indulged in “kinky” sex than that he
intentionally killed Ross, that Kachinsky accepted at face value the
information the Blakes gave him—and that Kuech and Smits would have pursued a
lesser-included offense if the facts supported it. We conclude that pre-plea counsel’s
performance was not deficient. We
therefore need not examine whether that performance was prejudicial.
b. Ineffective assistance of post-plea counsel
¶16 Blake also contends that Kachinsky, his post-plea/sentencing counsel, provided ineffective assistance. He claims Kachinsky failed to present available mitigation evidence at sentencing, instead focusing on a proportionality argument,[4] and failed to prescreen or object to as unduly inflammatory the musically enhanced PowerPoint photo montage.
¶17 A defendant’s right to effective representation extends to
sentencing. See Darden v. Wainright, 477
¶18 Blake’s final challenge involves the PowerPoint photo montage of Ross’s life and the accompanying musical tribute that her family presented as a victim-impact statement. See Wis. Stat. § 972.14(3)(a). Blake asserts Kachinsky should have objected to the presentation because it “had a powerful effect on all who viewed it.” Kachinsky testified that he did not preview it or object during the slideshow because he saw no legal basis to do so. Without deciding if this constitutes deficient performance, we conclude that Blake has not shown a reasonable probability that it was prejucidial—i.e., that but for Kachinsky’s failure to object, the court would have imposed a lesser sentence than it did.
¶19 The same judge heard Kachinsky’s argument at sentencing and then
the rationale for it at the Machner hearing.
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 2005-06 version.
[2] The term “autoerotic” appears throughout the proceedings. We agree with the State that it is inaccurately used, as nothing suggests Ross engaged in self-strangulation.
[3]
[4]
Kachinsky argued that strangulation is less vicious than some other ways of
committing murder and