COURT OF APPEALS
DATED AND FILED
June 8, 2010
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
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
State of Wisconsin,
John H. Townsend,
from an order of the circuit court for Milwaukee
a. wagner, Judge. Affirmed.
Before Curley, P.J., Fine and Kessler, JJ.
¶1 FINE, J. In 2001, John H. Townsend pled no contest to felony murder,
with attempted armed robbery as party to a crime as the underlying crime, in
connection with the armed robbery of a grocery store. See Wis. Stat. §§ 940.03, 939.05 & 939.32
(1999–2000). We summarily
affirmed on his direct appeal. See State
v. Townsend, No. 2002-0183-CR, unpublished slip op. (WI App Dec. 18,
2002). In June of 2007, Townsend filed a pro
se Wis. Stat. § 974.06 motion
claiming that his trial and postconviction lawyers were ineffective. See State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 682, 556 N.W.2d 136, 139 (Ct. App. 1996)
(ineffective assistance of postconviction counsel may be a sufficient reason
for failing to have previously raised the issues). The circuit court held a hearing under State
v. Machner, 92 Wis. 2d 797, 285 N.W.2d
905 (Ct. App. 1979) (hearing to determine whether lawyer gave a defendant
ineffective assistance), and denied Townsend’s
appeals pro se. We affirm.
¶2 Townsend argues that his
postconviction lawyer was ineffective because the lawyer did not raise the
issue of his trial lawyer’s ineffectiveness.
Townsend contends his trial lawyer gave him ineffective assistance
because the lawyer: (1) did not
investigate alleged newly discovered evidence (a co-actor’s statement to
another inmate that Townsend did not know his co-actor intended to rob the
store), which Townsend claims would have allowed him to withdraw his plea;
(2) should have filed a suppression motion, alleging that his confession
was coerced; (3) did not properly explain the elements of the crime, which
he alleges led to an involuntary plea; and (4) promised Townsend a
specific sentence. We address and reject
each argument in turn.
¶3 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. We need not address both deficient performance and prejudice if the defendant
does not make a sufficient showing on either one. Id.,
466 U.S. at 697. Our review of an
ineffective-assistance-of-counsel claim presents mixed questions of law and
fact. See State v. Johnson,
153 Wis. 2d 121, 127, 449 N.W.2d 845, 848
(1990). A circuit court’s findings of
fact will not be disturbed unless they are clearly erroneous. Ibid. Its legal conclusions—whether the lawyer’s
performance was deficient and, if so, prejudicial—present questions of law we
review de novo. Id., 153 Wis. 2d at 128, 449 N.W.2d at 848.
Alleged Newly Discovered Evidence.
¶4 Townsend claims his trial
lawyer gave him ineffective assistance because he ignored the statement a
co-actor made to another inmate that Townsend
did not know about the co-actor’s intent to rob the store. Townsend
says this information was a new factor that would have supported a motion for
plea withdrawal, and that his trial lawyer was ineffective for not pursuing
it. We reject this claim.
¶5 Whether a new factor exists is a question of law we review de novo.
State v. Slagoski, 2001 WI App 112, ¶10, 244 Wis.
2d 49, 59, 629 N.W.2d 50, 54.
A new factor is a fact or set of facts highly relevant
to the imposition of sentence, but not known to the trial court at the time of
original sentencing, either because it was not then in existence or because it
was unknowingly overlooked by the parties.
The new factor not only must be previously unknown, but it must also
strike at the very purpose of the original sentence.
The Record demonstrates that the co-actor’s statement was not a
new factor and thus could not be used as a basis for plea withdrawal.
trial lawyer testified that he got the co-actor’s statement after the plea, but
before sentencing. He testified at the Machner
hearing that he “thought Mr.
Townsend should look at it and
see whether this new evidence affected his decision to enter his guilty
plea.” “I gave him a copy of the …
statement and asked him whether he wanted to move to withdraw his pleas on this
basis, and he decided that he did not.”
● The trial lawyer told Townsend
that the “statement didn’t significantly change the landscape of the evidence”
because the videotape of the robbery clearly shows Townsend
to “be involved in this armed robbery.”
The lawyer further testified that the videotape showed Townsend saying
“give me the money. And so it was clear
that even if he didn’t know what was going on when they walked through the
door, at some point he realized what was going on and involved himself and that
made him a party to the crime.”
¶6 Townsend testified that his
trial lawyer never told him about the co-actor’s statement and never asked him
whether he wanted to withdraw his plea. But the circuit court found the trial
lawyer’s testimony to be credible and made findings of fact consistent with the
trial lawyer’s account. These findings
are not clearly erroneous. Based on
those findings, the statement was
known before sentencing, and thus not “new.”
Further, Townsend’s own decision not to
pursue plea withdrawal defeats his attempt to blame his trial lawyer. Accordingly, the trial lawyer’s conduct with
regard to the co-actor’s statement was not ineffective.
¶7 Townsend also contends that his trial lawyer was ineffective
because he did not file a suppression motion claiming that the police coerced
Townsend’s confession. Based on the
circuit court’s findings of fact, this claim, too, is without merit.
¶8 At the Machner hearing, Townsend testified
that he was handcuffed during his interview with police and that the police
coerced him into confessing by saying that if he did not confess he “was going
to prison for the rest of [his] life” and “was going to be somebody’s bitch in
prison,” but if he told them what happened, he wouldn’t “go to prison.” Townsend said he told his trial lawyer about
this. His trial lawyer testified,
however, that he reviewed Townsend’s statement to determine whether “there may
be grounds to suppress” and that Townsend “never told me anything about a
problem with the statement” so he did not pursue a suppression motion. The detective who interviewed Townsend also testified.
He said that Townsend was not handcuffed, was advised of his rights
under Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Before the police
may question a suspect in custody, they must warn that person that he or she
does not have to say anything and that the person may have a free lawyer.),
understood his rights, agreed to give up those rights and talk, was fully
cooperative, knew what was going on, was never threatened, and was given food
and drink. When specifically asked
whether the police told Townsend “anything to the effect that if he did not
give a statement he would go to prison for the rest of his life, that he would
either be raped or somebody’s ‘bitch’ in prison. But if he told what happened, he would not go
to prison[,]” the detective answered, “No.”
¶9 The circuit court found the police and trial lawyer’s version
of events to be credible and Townsend to be “incredible and not worthy of
belief.” It further found that Townsend
was not coerced by police during the interview:
At no time during the interview did [the police] or
anyone else tell the defendant anything to the effect that if he did not give a
statement he would go to prison for the rest of his life, that he would either
be raped or somebody’s “bitch” in prison, nor was the defendant told that if he
told what happened he would not go to prison and may even just go out of the
¶10 These findings are not clearly erroneous. Thus, there was no basis to pursue the
suppression motion, and, therefore, the trial lawyer was not ineffective for
not doing so.
¶11 Townsend also argues his trial
lawyer gave him ineffective assistance because he did not explain the elements
of the crime to him before he agreed to plead no contest, resulting in an
involuntary, unknowing and unintelligent plea.
The circuit court found otherwise and the Record supports the circuit
¶12 The circuit court found:
● The trial lawyer “went over the guilty
plea questionnaire and waiver of rights form … and explained everything on the
form to the defendant.”
● The trial lawyer “described the
elements of felony murder to the defendant and attached jury instructions to
the plea questionnaire and believed that is how he went over the elements with
● The trial lawyer “underlined the
sentence on the guilty plea questionnaire:
‘These elements have been explained to me by my attorney.’ That is the practice [the trial lawyer] employed
when he explained elements orally to a client.”
● “The Wisconsin ju[ry] instructions for
felony murder … party to a crime … and armed robbery … and attempt … were
attached to the guilty plea questionnaire. … [The trial lawyer] had the jury
instructions with him when he discussed the elements with the defendant because
he drafted them and put them in his file and filed them with the court, [the
trial lawyer] did not recall if he stapled them to the plea questionnaire or
not but [the trial lawyer] went over the elements in those instructions of that
offense with the defendant and explained the relationship of how those elements
were proven by the facts in the case.”
These findings are not clearly
erroneous and support the circuit court’s legal conclusion that Townsend’s trial lawyer properly advised him of the
elements of the crime. Accordingly,
Townsend did not prove that his trial lawyer gave him ineffective assistance.
¶13 Townsend next claims that his trial lawyer promised him that if
he pled no contest, his sentence would be ten years in prison and fifteen years
of extended supervision. Townsend was
actually sentenced to eighteen years’ initial confinement, followed by seven
years’ extended supervision. Townsend
argues his trial lawyer’s promise was ineffective assistance.
¶14 The circuit court found that the trial lawyer “never promised
the defendant he would get 10 years of initial confinement and 15 years of
extended supervision.” This finding is
supported by the trial lawyer’s testimony at the Machner hearing:
● “I know for a fact I never made a
promise to Mr. Townsend as to what his
sentence would be.”
● “I would not have said that…. It is possible I discussed where I thought
the [sentence] might fall … things of that nature. … But I’m very scrupulous about making it
clear that the [court] is free to sentence a person to whatever he wants. I would not have made it a promise.”
The circuit court’s finding
here is further supported by the Record documents including the plea-bargain
agreement and the plea-waiver form, which both tell Townsend
the maximum potential penalty and that the circuit court was not bound by the
plea-bargain. Townsend did not prove
ineffective assistance with regard to his sentence-promise claim.
¶15 Townsend also argues his
postconviction lawyer gave him ineffective assistance. Because his premise for postconviction lawyer
ineffectiveness is based on what he contends his trial lawyer should have done,
and, as we have seen, none of his allegations of trial lawyer ineffective
assistance have any merit, he has no grounds to assert postconviction-lawyer
Machner Hearing Lawyer.
¶16 Finally, Townsend asserts that the lawyer who was assigned to
represent him at the Machner hearing gave him ineffective
assistance. He claims this lawyer “did
nothing but show up to the hearings,” “could have presented a better case” and
did “[n]o investigation.” He claims this
prejudiced him because “it swayed the trial court to believe that Townsend was not presenting a genuine postconviction
proceeding.” Townsend does not, however,
beyond these conclusory assertions, show what the lawyer who represented him at
hearing should have done that he did not do. Accordingly, he has not shown that the lawyer
gave him ineffective representation at the hearing. See State v. Byrge, 225 Wis.
2d 702, 724, 594 N.W.2d 388, 397 (Ct. App. 1999).
By the Court.—Order affirmed.
in the official reports is not recommended.