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COURT OF APPEALS
DECISION
DATED AND FILED
December 22, 2009
David R. Schanker
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 I
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State of Wisconsin,
Plaintiff-Respondent,
v.
William F. Counts,
Defendant-Appellant.
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APPEAL
from a judgment and orders of the circuit court for Milwaukee County: david a.
hansher, WILLIAM sOSNAY,
and DENNIS R. CIMPL, Judges. Affirmed.
Before Fine, Kessler and Brennan,
JJ.
¶1 FINE, J. William F.
Counts appeals a judgment entered
after he pled no contest to two counts of armed robbery, party to a crime, see Wis.
Stat. §§ 943.32(2) and 939.05. His
plea was entered under North Carolina v. Alford, 400 U.S.
25 (1970), which says that it is okay for a defendant to accept conviction even
though he or she protests innocence, id., 400 U.S. at 32–37. He also appeals postconviction orders denying,
without holding a hearing, Counts’s requests to withdraw his plea. Counts argues he should be allowed to
withdraw his pleas because his lawyer gave him ineffective representation by: (1) not filing a timely notice of alibi; and
(2) not seeking dismissal of the charges against him because of an alleged violation
of his right to a speedy trial. We
affirm.
I.
¶2 On November 9, 11, and 17, 2004, there were three armed
robberies, and Counts was arrested for them on November 18, 2004. The next day he was placed in custody on a
probation hold in an unrelated case. On November 24, 2004, Counts
was charged with three counts of armed robbery as party to a crime. After his initial appearance and preliminary examination
on the armed robberies, a scheduling conference was set for January 4, 2005. From that time until March 16, 2005, several plea-hearing dates
were adjourned because Counts’s lawyer was trying to work out a plea bargain
between Counts and the prosecutor. On
March 16, Counts’s lawyer told the circuit court that plea negotiations were
unsuccessful. The circuit court then admonished Counts about “stringing this
case out … only for your own advantage.”
A final pretrial hearing was set for June 13, 2005 (later rescheduled to July 26, 2005) and the
trial date was set for August
8, 2005.
¶3 Counts’s probation in the other case was revoked and, on June 29, 2005, he was reconfined
to serve one year and six months in that case. On July 26, 2005, at what was scheduled to be the final
pretrial hearing in this case, Counts’s lawyer asked to withdraw telling the
circuit court that “it is impossible for me and Mr. Counts
to work together and to communicate.”
The circuit court permitted the withdrawal and the case was adjourned to
August 23, 2005,
to allow new counsel adequate time to prepare. The matter was adjourned again to September 22, 2005, so
Counts could file a suppression motion.
At a pretrial conference on November 11, 2005, Counts rejected the State’s final plea
offer and made his first speedy-trial demand. A jury trial was scheduled for December 12, 2005. On December 7, 2005, the State filed a motion to adjourn because
a person it said was a key witness was unavailable. In response, on December 12, 2005, the circuit court told the
parties that it was involved in a homicide trial and that Counts’s trial would thus
have to be reset. A pretrial conference was
set for March 17, 2006,
with the new jury trial set for May
15, 2006. On the pretrial
date, Counts’s lawyer asked to withdraw from the case because of personal and
family health issues. Counts did not
object, saying that his case “is delicate so I [would] rather have someone who
could devote all their attention toward it.”
¶4 The case was set for a status conference on April 4, 2006. On that date, the case was adjourned to April 18, 2006, because a new
lawyer from the public defender’s office had not yet been appointed. Once the appointment was made, the case was
again adjourned to April 27,
2006, at the lawyer’s request because he had a conflict in his
calendar. On that date, both Counts’s
lawyer and the State requested that the May trial date be adjourned. Counts’s lawyer renewed the speedy-trial
demand on April 27, 2006. A pretrial hearing was then set for June 29, 2006, and the
trial was scheduled for July
17, 2006.
¶5 At the pretrial hearing on June 29, Counts filed a notice of
alibi for the first time, saying that Awilda Pagan “may testify” that “at the
time [of] the crimes … [Counts] was at an apartment” in a different part of Milwaukee. The State also asked for a brief adjournment because
one of the victims would not be available on July 17, and the victim was needed
to prove the State’s case in one of the robberies. The circuit court gave Counts the option of
keeping the July 17, 2006
trial date without the alibi witness, or granting a short adjournment to July 31, 2006, in order to
give the State an opportunity to investigate the alibi defense. See Wis.
Stat. § 971.23(8)(a) (notice of alibi must be filed thirty days or more
before the trial). Counts elected to
keep the trial date and forgo the alibi defense. The State withdrew its request for an adjournment
and elected to pursue only two of the armed robbery counts.
¶6 After Counts rejected a proposed plea bargain on July 11, 2006, the case was
set for trial on July 18,
2006. On that date, Counts entered
his Alford
plea to two counts of armed robbery as party to a crime.
II.
¶7 Counts argues that the circuit court erred when it denied his
motions to withdraw his plea without holding a hearing under State
v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979), on his
claims that his trial lawyer gave him ineffective representation by not: (1) filing a timely notice of alibi, and (2) seeking
dismissal of the charges because of an alleged speedy-trial violation. There was no error.
¶8 When a defendant seeks to withdraw a guilty or no contest
plea after sentencing, he must prove “by clear and convincing evidence that
withdrawal is necessary to correct a manifest injustice.” State v. James,
176 Wis. 2d
230, 236–237, 500 N.W.2d 345, 348 (Ct. App.
1993). The manifest-injustice test is
satisfied if the defendant’s plea was the result of the ineffective assistance
of counsel. State v. Washington,
176 Wis. 2d
205, 213–214, 500 N.W.2d 331, 335 (Ct. App.
1993).
¶9 To establish ineffective assistance of counsel, a
defendant must show: (1) deficient
performance; and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, a defendant
must point to specific acts or omissions by the lawyer that are “outside the
wide range of professionally competent assistance.” Id.,
466 U.S.
at 690. To prove prejudice, a defendant
must demonstrate that the lawyer’s errors were so serious that the defendant
was deprived of a fair trial and a reliable outcome. Id.,
466 U.S.
at 687. Thus, in order to succeed on the
prejudice aspect of the Strickland analysis, “[t]he 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.” Id.,
466 U.S.
at 694. “‘[B]oth
the performance and prejudice components ... are mixed questions of law and
fact.’” State v. Pitsch, 124 Wis. 2d 628, 633–634, 369
N.W.2d 711, 714 (1985) (citation omitted). The circuit court’s findings of fact will not
be overturned unless clearly erroneous. State
v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845, 848
(1990). Whether the attorney’s
performance was deficient and whether the deficiency prejudiced the defense are
questions of law that we review de novo. Id., 153 Wis. 2d at 128, 449
N.W.2d at 848.
¶10 Counts has not shown that a Machner hearing was
warranted because the Record conclusively shows that Counts’s lawyer did not
give him ineffective representation. See State
v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 576–577, 682 N.W.2d 433,
437 (Circuit court has discretion to deny a postconviction motion for a Machner
hearing “if the motion does not raise facts sufficient to entitle the movant to
relief, or presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief.”).
A.
Alibi.
¶11 As we have seen, Counts contends that his trial lawyer gave him
ineffective representation because the lawyer did not, Counts argues, timely
file the notice of alibi. The notice of
alibi was filed on June 29,
2009, eighteen days before the trial was to begin. As we have also seen, Wis. Stat. § 971.23(8)(a) requires that a notice of alibi be
filed thirty days or more before the start of a trial. The Record conclusively shows Counts is not
entitled to relief.
¶12 First, Counts did not tell his lawyer about the alleged alibi
witness until just before the lawyer filed the notice. Thus, whatever delay there was in filing the
notice of alibi was his fault and not the fault of the lawyer. Second, Counts has not linked what he says the
proposed testimony of the alibi witness would have been with his decision to
plead no contest to the two charges—significantly, his notice only claims that
the witness “may testify” that Counts was somewhere else. See Hill v. Lockhart, 474 U.S.
52, 59 (1985) (defendant
seeking to withdraw a plea must provide a specific explanation of why, but for
the alleged error, he would have gone to trial rather than entered the plea).
B.
Speedy Trial.
¶13 Counts argues his lawyer ineffectively represented him by not
seeking dismissal of the charges because of an alleged violation of his right
to a speedy trial. The Record
conclusively shows, however, that Counts’s speedy-trial right was not violated.
¶14 In considering a speedy-trial claim, we apply a balancing test and
examine the conduct of the State and the defendant to determine if the
defendant’s right to a speedy trial was violated. See Barker v. Wingo, 407 U.S.
514, 530 (1972). The test involves
several factors: the length of the
delay, the reason for the delay, the defendant’s timely assertion of the speedy-trial
right, and any actual prejudice to the defense from the delay. Ibid.
¶15 The length of time between when Counts was charged and the final
trial date was twenty months, which is presumptively prejudicial. See Doggett v. United States, 505 U.S.
647, 652 n.1 (1992) (a twelve-month delay between charging and trial is
considered presumptively prejudicial: “unreasonable
enough to trigger the Barker enquiry”). Presumptive prejudice, however, does not
establish actual prejudice; rather, it
“triggers further review of the allegation under the other three Barker
factors.” State v. Lemay, 155 Wis. 2d 202, 212–213,
455 N.W.2d 233, 237 (1990).
¶16 As we have seen, the reasons for the delays and repeated
adjournments are primarily attributed to Counts. From January of 2005 to March of 2005, the
case was delayed because Counts was considering accepting conviction. After three months, Counts said he did not
want to do that. The circuit court opined
that Counts was manipulating the system. At the initial final pretrial hearing,
Counts’s lawyer asked to withdraw because he had problems communicating with
Counts. Thus, the delay between July of 2005
and November of 2005 was not caused by the State. Counts’s new lawyer made a speedy trial demand
on November 11, 2005,
and the case was set for trial on December 12, 2005.
Shortly before the trial, although the State asked to adjourn the trial
because of its problems getting a witness, the circuit court had to bump
Counts’s trial because of its calendar congestion. In March of 2006, Counts’s lawyer withdrew
for personal health reasons and Counts did not object. From March until April of 2006, the delay was related
to getting Counts a new lawyer and the lawyer’s need to prepare properly. This, too, was not the State’s fault. Counts’s lawyer then requested an adjournment
of the May of 2006 trial date and the July 17, 2006 trial date was set. This delay, too, was not the fault of the
State. After twenty months and initially
refusing to accept any plea bargains, Counts entered his Alford pleas in July of 2006.
¶17 Counts was responsible for most of the delays he now claims
deprived him of his right to a speedy trial. Further, Counts has not shown that he was prejudiced
by the twenty-month delay in this case. The
speedy-trial right protects three interests: (1) “oppressive pretrial incarceration”; (2) “anxiety
and concern of the accused;” and (3) impairment of the ability of the defendant
to mount a defense. See Barker, 407 U.S.
at 532. While waiting for the trial in
this case, Counts was incarcerated in another case. Thus, the first factor—oppressive pretrial
incarceration is not applicable.
Although he alleges that the delay caused him stress, he does not show that
the delay hindered his defense—loss of witnesses or evidence, faded recollection,
or anything else. See State v. Leighton,
2000 WI App 156, ¶23, 237 Wis.
2d 709, 724, 616 N.W.2d 126, 136. He has
also not shown that his decision to plead no contest was the result of the
delay.
¶18 We affirm.
By the Court.—Judgment and
orders affirmed.
Publication
in the official reports is not recommended.