Complete Title of Case:
†Petition for Review Filed.
Todd W. Berggren,
May 27, 2009
Submitted on Briefs:
February 5, 2009
Curley, P.J., Fine and Kessler, JJ.
On behalf of the defendant-appellant,
the cause was submitted on the briefs of Robert G. LeBell of LeBell, Dobroski & Morgan LLP,
On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sarah K. Larson, assistant attorney general.
2009 WI App 82
COURT OF APPEALS
DATED AND FILED
May 27, 2009
David R. Schanker
Clerk of Court of Appeals
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.
STATE OF WISCONSIN
IN COURT OF APPEALS
Todd W. Berggren,
from a judgment and orders of the circuit court for
¶1 CURLEY, P.J. Todd W. Berggren appeals from a judgment of conviction, entered upon his guilty pleas, for two counts of first-degree sexual assault of a child, two counts of second-degree sexual assault of an unconscious victim, two counts of sexual exploitation of a child, and one count of possession of child pornography, contrary to Wis. Stat. §§ 948.02(1), 940.225(2)(d), 948.05(1)(b), and 948.12 (2005-06). Berggren also appeals the orders denying his motions for postconviction relief. He argues that he should be able to withdraw his pleas, contending that his trial counsel was ineffective because he failed to file suppression motions relating to: (1) the seizure of a memory stick containing incriminating photographs; and (2) Berggren’s custodial statements. He further asserts that the trial court erroneously exercised its discretion when it sentenced him and that the sentence imposed is excessive and constitutes cruel and unusual punishment. We conclude that Berggren’s trial counsel was not ineffective and that the trial court properly exercised its discretion and imposed a sentence that was not unduly harsh. Accordingly, we affirm the judgment and orders.
November 28, 2005, Berggren was charged with two counts of first-degree sexual
assault of a child, two counts of second-degree sexual assault of an
unconscious victim, two counts of sexual exploitation of a child, and thirteen
counts of possession of child pornography.
The charges brought against Berggren stem from his then-twelve-year-old
daughter’s, Brittany B.’s, November 23, 2005 discovery of photographs on a
memory stick for Berggren’s digital camera.
¶3 The same day that
¶4 Lisa then asked her brother, Michael Bolender, and her father
¶5 After arriving home,
¶6 Berggren pled guilty to two counts of first-degree sexual assault of a child, two counts of second-degree sexual assault of an unconscious victim, two counts of sexual exploitation of a child, and one count of child pornography. Pursuant to plea negotiations, the twelve remaining counts of possession of child pornography were dismissed but read-in at sentencing. He was sentenced as follows: Count 1 (first-degree sexual assault of a child), eighteen years of initial confinement and five years of extended supervision; Count 2 (first-degree sexual assault of a child), eighteen years of initial confinement and five years of extended supervision, concurrent to Count 1; Count 3 (second-degree sexual assault of an unconscious victim), twelve years of initial confinement and six years of extended supervision, consecutive to Counts 1 and 2; Count 4 (second-degree sexual assault of an unconscious victim), twelve years of initial confinement and six years of extended supervision, concurrent to Count 3; Count 5 (sexual exploitation of a child), five years of initial confinement and five years of extended supervision, consecutive to Counts 3 and 4; Count 6 (sexual exploitation of a child), five years of initial confinement and five years of extended supervision, concurrent to Count 5; and Count 7 (possession of child pornography), one year of initial confinement and one year of extended supervision, consecutive to Counts 5 and 6. In total, Berggren was sentenced to thirty-six years of initial confinement and seventeen years of extended supervision.
¶7 Berggren filed a postconviction motion seeking sentence modification on the basis that the sentence imposed was the product of an erroneous exercise of discretion. The trial court denied Berggren’s motion and he appealed, but later voluntarily dismissed his appeal to pursue a second postconviction motion.
¶8 In his second postconviction motion, Berggren sought to withdraw his pleas based on ineffective assistance of counsel. Berggren maintained that his trial counsel was ineffective because he failed to file suppression motions related to the memory stick and statements Berggren made while in custody. The trial court held a Machner hearing, after which it denied Berggren’s motion to vacate his pleas, adopting the State’s findings of facts and conclusions of law in toto. Berggren now appeals. Additional facts will be provided in the analysis section as necessary to the discussion of Berggren’s claims.
A. Berggren’s trial counsel did not render ineffective assistance.
¶9 Berggren argues that he should be able to withdraw his pleas because his trial counsel was ineffective for failing to challenge the seizure of a memory stick containing incriminating photographs and for not filing a motion to suppress his custodial statements. In an affidavit, Berggren asserts that if he had known “that there was a viable motion to suppress the memory stick and/or the custodial statements, he would not have pled guilty.”
¶10 “Following sentencing, a defendant who seeks to withdraw a
guilty or nolo contendere plea
carries the heavy burden of establishing, by clear and convincing evidence,
that the trial court should permit the defendant to withdraw the plea to
correct a ‘manifest injustice.’” State
¶11 A defendant claiming ineffective assistance of counsel must
establish that the trial counsel’s performance was deficient, and that the
defendant suffered prejudice as a result.
¶12 We review a claim for ineffective assistance of counsel under a
mixed standard of review. State
v. Johnson, 153
ineffective assistance in connection with trial counsel’s failure
to file a suppression motion related to the memory stick.
¶13 Berggren’s first claim on appeal is that his attorney should
have sought to suppress the memory stick and the photographs it contained. Berggren contends that “the viewing [of the
memory stick’s contents] by Bolender and the subsequent viewing by
¶14 “Private searches are not subject to the Fourth Amendment’s
protections because the Fourth Amendment applies only to government
action.” State v. Payano-Roman,
2006 WI 47, ¶17, 290
¶15 In State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711, we had the opportunity to address when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment. After considering case law from other jurisdictions, we explained:
there appears to be general agreement in other jurisdictions that have considered the issue that “[government] involvement [in a search] is not measured by the primary occupation of the actor, but by the Capacity [sic] in which he acts at the time in question”; therefore, an off-duty officer acting in a private capacity in making a search does not implicate the Fourth Amendment.
¶16 Based on the findings of fact adopted by the trial court, when Bolender was given the memory stick, he was off-duty and went to Lisa’s home after receiving a call that she was upset about something having to do with his niece, Brittany. Bolender came into the situation being “on Todd[ Berggren]’s side,” as Berggren was someone he knew and trusted. Bolender “thought that this was probably a situation where something had been blown out of proportion.” He “never thought that the memory stick might contain the kind of pictures he observed” and “[h]e never thought that the pictures would contain evidence of a crime.” Bolender first tried to view the pictures on Lisa’s computer, which was in an open area of the house such that, if the memory stick had worked with Lisa’s computer, everyone present, including Cynthia and other children, would have been able to view the pictures.
¶17 We conclude that the viewing of the photographs by Bolender did
not meet the requirements under Payano-Roman for a government
search. First, despite the fact that
Bolender was a lieutenant for the Oak Creek Police Department, his actions were
not instigated by the police. Second,
his actions were taken in his capacity as
¶18 According to Berggren, “[t]here is no other reasonable
explanation, under the circumstances described herein, other than that Bolender
was acting in his official investigative capacity as a law enforcement
officer.” We disagree based on our
deferential review of the trial court’s factual findings. See
¶16. Berggren specifically contends that
“testimony of Bolender that he was not concerned that the media stick might
contain contraband or evidence was not credible, in light of the facts which
existed at the time the media stick was given to him.” Credibility determinations, however, are for
the trial court.
¶19 Berggren next contends that he had a clear expectation of
privacy in the contents of the memory stick.
Because we concluded that Bolender was acting in a private capacity and
not in an official capacity when he viewed photographs on the memory stick, Berggren’s
privacy expectations only become relevant insofar as they relate to the
subsequent viewing of the photographs by the
¶20 After an initial invasion of privacy by private action, “additional
invasions of … privacy by the government agent must be tested by the degree to
which they exceeded the scope of the private search.”
¶21 Because a suppression motion related to the memory stick would
have been appropriately denied, Berggren’s trial counsel was not ineffective
for not making one. See State v. Simpson,
2. Alleged ineffective assistance in
connection with trial counsel’s failure
to file a motion to suppress Berggren’s custodial statements.
¶22 Berggren’s second claim on appeal is that his attorney should have sought to suppress his custodial statements. Although he signed a waiver of rights form and acknowledges that he was properly advised of his Miranda rights prior to his first interview, Berggren argues that he was not properly advised of his rights in a subsequent interview. In addition, in what appears to be an argument that his statements were coerced, he alleges that his statements were induced by promises of probation and treatment. Lastly, Berggren claims that he invoked his right to counsel on multiple occasions and that his requests were denied.
¶23 On review, a trial court’s findings of evidentiary or
historical fact will not be overturned unless they are clearly erroneous.
a. Berggren was properly advised of his Miranda rights.
¶24 Berggren signed a waiver of rights form and acknowledges that
he was initially advised of his Miranda rights at 7:46 a.m. on
November 24, 2005. Notwithstanding, he
contends he was not properly advised of his Miranda rights during the
second segment of the interview.
Berggren points to the fact that after approximately fifteen minutes of
questioning during the second segment, the detective conducting the interview
simply said words to the effect: “You know about your rights, right? You know your rights. You know all that good stuff, right, that I
read to you?” At the time of his arrest,
Berggren had been employed as a police officer for
¶25 In addition to showing “that the defendant received and
understood his or her Miranda warnings,” the State has the
burden of showing “that the defendant knowingly and intelligently waived the
constitutional rights protected by the Miranda warnings.” State v. Armstrong, 223
¶26 The trial court listened to the audio recording of Berggren’s in‑custody statements, which were made over the course of several interview segments. The pertinent segments for purposes of our analysis on this point are the first and second interview segments because Berggren’s argument hinges on whether he properly received his Miranda rights during the second segment of the interview.
¶27 The trial court found that Berggren was properly advised of his Miranda rights, understood those rights, signed a waiver of rights form, and agreed to talk to the detective questioning him. The initial period of interrogation began at 7:46 a.m. on the day of Berggren’s arrest and ended at 8:23 a.m. The second segment began at 9:45 a.m. that day when Berggren was asked additional questions resulting in further statements by him. The trial court found that during the second segment, the detective explained Berggren’s constitutional rights to him and Berggren agreed to continue talking to the detective. The recording was stopped at 10:03 a.m. at Berggren’s request and resumed at 10:09 a.m. The second interview segment ended at 10:38 a.m.
¶28 Having initially been read his Miranda warnings (a fact
that is uncontroverted based on the audio recording in the record), contrary to
Berggren’s contention, the police were not required to repeat the Miranda
warnings at the outset of each subsequent segment of his interview. See
b. Berggren voluntarily gave his statements.
¶29 Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”; “the idea that if [Berggren] confessed he would get treatment and help and his confession would have a large impact on the district attorney’s position”; “if [Berggren] confessed the confession would have a lot to do with how he was received in the district attorney’s office[, however, i]f he persisted in a denial[,] the district attorney would not like to hear that version,” and it would affect how the district attorney viewed the case; and finally, if Berggren admitted his guilt, he would get help.
¶30 The determination of whether a custodial statement was
voluntarily made is one of ultimate constitutional fact which an appellate
court determines de novo.
¶31 “An officer telling a defendant that his cooperation would be
to his benefit is not coercive conduct, at least so long as leniency is not
promised.” State v. Deets, 187
¶32 Here, the statements Berggren relies on to support his argument
do not amount to coercion or improper police practices. We agree with the State that “there is no
affirmative evidence in the record of [improper] police practices deliberately
used to procure Berggren’s confession.” See Clappes,
c. Berggren did not unequivocally invoke his right to counsel.
¶33 We now address Berggren’s claim that he invoked his right to
counsel on at least three separate occasions.
He contends that he first invoked his right to counsel while he was in
the booking room at the
¶34 As to the request made in the presence of the chief of police, the trial court found that “Berggren, after some discussion about his thinking he needed an attorney, signed the waiver o[f] rights, and agreed to talk further about the incident.” This interview segment was stopped while the detective retrieved additional photographs and then resumed, at which time, Berggren unequivocally asked to speak with an attorney, and the interview was immediately terminated. Prior to that, the trial court found that Berggren never told the detective questioning him that he wanted an attorney. The trial court did, however, find that Berggren asked officers other than the detective who interviewed him if he could use the phone and that Berggren told the other officers he wanted to call his parents so that they would let his dog out and call an attorney for him.
¶35 The sufficiency of Berggren’s invocation of his right to
counsel “is a question of constitutional fact that we review under a two-part
standard. We uphold the [trial] court’s
findings of historical or evidentiary fact unless they are clearly
erroneous. We review independently the
lower court’s application of constitutional principles to those evidentiary
¶36 We agree with the trial court’s conclusion that even if we
assume that the defendant made requests to call his parents so that they could
call an attorney for him, prior to when he was questioned, his vague statements
were insufficient to invoke Berggren’s right to counsel. See State v. Ernst, 2005 WI 107, ¶10,
The evidence clearly demonstrates that Todd Berggren wanted to talk to the detective. If he truly did not want to make a statement without an attorney present, he would not have signed the waiver form and agreed to make a statement on multiple occasions. Berggren, as a police officer himself, knew what he had to do to invoke his right to an attorney. In fact, he did precisely this at the end of the 5th interview segment.
We conclude, as the trial court did, that any statements prior to that time were not unequivocal requests for counsel, particularly when they were immediately followed by Berggren signing another waiver of rights form and agreeing to talk. As such, there would have been no constitutional barrier to the admission of Berggren’s statements.
¶37 Again, because any suppression motion related to Berggren’s
custodial statements would have been appropriately denied, Berggren’s trial
counsel was not ineffective for not making one.
See Simpson, 185
B. The trial court properly exercised its discretion when it sentenced Berggren.
¶38 As his final argument, Berggren challenges his sentence as
unduly harsh and excessive, both as an erroneous exercise of sentencing
discretion and as unconstitutional cruel and unusual punishment, violative of
¶39 Sentencing is left to the discretion of the trial court and
appellate review is limited to determining whether there was an erroneous
exercise of discretion. State
v. Gallion, 2004 WI 42, ¶17, 270
¶40 At sentencing, the three primary factors a court must consider
are the gravity of the offense, the character of the defendant, and the need to
protect the public. State v. Harris, 119
“(1) Past record of criminal offenses; (2) history of undesirable behavior pattern; (3) the defendant’s personality, character and social traits; (4) result of presentence investigation; (5) vicious or aggravated nature of the crime; (6) degree of the defendant’s culpability; (7) defendant’s demeanor at trial; (8) defendant’s age, educational background and employment record; (9) defendant’s remorse, repentance and cooperativeness; (10) defendant’s need for close rehabilitative control; (11) the rights of the public; and (12) the length of pretrial detention.”
¶41 The record reveals that the trial court considered the
appropriate factors. In terms of the
gravity of the offense, the trial court referenced aggravating factors related
to Cynthia’s age, the fact that she was an unconscious victim during the
assaults, and the degrading nature of Berggren’s exploitation of her. The trial court also briefly mentioned the
level of planning that went into the crimes.
The court further noted that Cynthia’s father found out about Berggren’s
criminal acts while he was serving our country in
¶42 In addition, the trial court considered Berggren’s character, noting the good work Berggren did as a police officer, and the supporting letters submitted on his behalf. The trial court acknowledged Berggren’s remorse. However, after relaying these positive aspects of Berggren’s character, the trial court referenced “the other side, there’s this dark side where you committed these horrific acts.” Presumably, this dichotomy led the trial court to remark that Berggren’s rehabilitative needs were “somewhat of a question mark” based upon the information it had received “because no one knows the whys or the why nots, so it would take significant treatment to deal with those issues that—that you have.”
¶43 Finally, the court emphasized the trust relationship that Berggren had with the community, stating: “Your position in the community, that you’re—you’re there to—to protect and to serve, not to destroy.” The court elaborated that based on information it had received, parents of children at Brittany’s school struggled with the information related to the charges against Berggren because they had trusted Berggren with their daughters, allowing them to sleep over at his house, take trips with him, and play on soccer teams he coached. The trial court noted that there was concern as to whether those girls also may have been victims and “counselors had to come into the public schools to be—[to] help with those children. In essence, your conduct generated so many fears in the community that it’s going to have a long[-]lasting effect on other individuals.”
¶44 Immediately prior to sentencing Berggren, the trial court read remarks by the presentence investigator into the record:
The presentence investigator states that the defendant was a trusted public official in the community for many years compounds his culpability. Clearly, the defendant has long[-]term treatment needs that can be best met in a confined correctional setting versus the community. The writer strongly disagrees with the defendant’s contention that he still can be a benefit to the community and should not be sentenced to prison. He must be held accountable for the pain and suffering he has caused the victim and all others directly or indirectly affected by his behavior. The fact that he broke the very laws that he was sworn to uphold substantially—substantiates just cause for him to be punished swiftly and severely. No child should have to be sexually assaulted by their parent figure or anyone else. A lengthy prison sentence is warranted to insure the victim and the community that this defendant will not have access to any more children for a very lengthy period of time.
Although, as Berggren points out, the trial court did not expressly state that it adopted the presentence investigator’s reasoning to support the sentence, the clear inference from the above remarks is that the trial court did take this reasoning into account when it sentenced Berggren. See McCleary v. State, 49 Wis. 2d 263, 282, 182 N.W.2d 512 (1971) (“It is not only our duty not to interfere with the discretion of the trial judge, but it is, in addition, our duty to affirm the sentence on appeal if from the facts of record it is sustainable as a proper discretionary act.”).
¶45 Citing State v. Hall, 2002 WI App 108, 255
Wis. 2d 662, 648 N.W.2d 41, to support his argument that the trial court failed
to articulate its reasoning in imposing consecutive sentences, Berggren
contends that the trial court’s sentencing decision, “in large measure, is one
in which the reader could simply ‘fill in the blank’ by inserting any crime at
any sentence of any number of years to be served concurrently or
consecutively.” In Hall, we held that the trial
court erroneously exercised its discretion by providing inadequate reasons for
the consecutive sentences imposed, in contravention of McCleary. See Hall, 255
¶46 A trial court properly exercises its discretion in imposing
consecutive or concurrent sentences by considering the same factors as it
applies in determining sentence length.
¶47 Finally, Berggren argues that his initial confinement period
amounts to cruel and unusual punishment.
“The test for whether a sentence violates the Eighth Amendment and
whether a sentence [i]s excessive are virtually identical in
¶48 Berggren’s sentence was not shocking, nor does it violate the judgment of reasonable people concerning what is right and proper under the circumstances. As the State points out, the aggregate sentence of fifty-three years is less than one-fourth of the statutory exposure Berggren faced if the maximum sentences for the charges he pled guilty to had all been imposed consecutively. It was within the trial court’s discretion to impose an initial confinement period, upon the completion of which Berggren will be seventy-six years old. See State v. Stenzel, 2004 WI App 181, ¶¶10-20, 276 Wis. 2d 224, 688 N.W.2d 20 (upholding what the defendant described as a “de facto life sentence”); State v. Ramuta, 2003 WI App 80, ¶¶22-26, 261 Wis. 2d 784, 661 N.W.2d 483 (upholding the sentence imposed where the defendant raised an analogous argument).
¶49 While Berggren surely hoped that the trial court would weigh
the sentencing factors differently, the choice is for the trial court to make. See Ocanas, 70
By the Court.—Judgment and orders affirmed.
 In his appellate briefs, Berggren contends that he was found guilty pursuant to a no‑contest plea. The record, however, reveals that Berggren pled guilty to the charges referenced.
All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 Due to the sensitive nature of the crimes involved, we
refer to certain individuals by first name and last initial only.
 Allegations that Berggren
 See State
v. Straszkowski, 2008 WI 65, ¶93, 310
hearing is an evidentiary hearing to determine trial counsel’s effectiveness.
 Berggren argues that the trial court’s findings “did not include a finding that no one told Michael Bolender about the contents of the memory stick.” In addition, Berggren asserts: “the findings fail to address Bolender’s acknowledgement that he was always on duty and had special training regarding the discovery of contraband.” Lastly, he contends, “the court failed to adopt the testimony of Bolender that he would not have viewed the contents of the memory stick if he wasn’t concerned about what was on it.”
 See Miranda
 The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishment” and is applicable to the states through the Fourteenth Amendment. The state constitution counterpart is article I, section 6 of the Wisconsin Constitution.
his reply brief, Berggren argues, for the first time, that the trial court
failed to consider the applicable sentencing guidelines as required by State
v. Grady, 2007 WI 81, ¶30, 302 Wis. 2d 80, 734 N.W.2d 364, clarified on reconsideration, 2007 WI
125, 305 Wis. 2d 65, 739 N.W.2d 488.
Berggren did not argue that the trial court failed to consider the
applicable guidelines in either his postconviction motion seeking sentence
modification on the basis that the sentence imposed was the product of an
erroneous exercise of discretion or in his opening brief. This court need not address arguments which
are raised for the first time in a reply brief or were not made in the trial
court. See Bilda v. County of Milwaukee,
2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661; Gibson v. Overnite Transp. Co.,
2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388. Furthermore, in what amounts to a
two-sentence argument by Berggren on this point, he does not develop how the
applicable sentencing guidelines would have affected the sentence imposed. We will not develop an argument for him. See State v. Pettit, 171