COURT OF APPEALS
DATED AND FILED
November 23, 2010
Acting 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,
David Derrell Morgan,
from a judgment and an order of the circuit court for Milwaukee County: daniel l.
konkol, Judge. Affirmed.
Before Fine, Kessler and Brennan,
¶1 FINE, J. David Derrell Morgan appeals the
judgment entered on his guilty plea to third-degree sexual assault, see Wis.
Stat. § 940.225(3), and the order denying his motion for postconviction relief. Morgan claims that: (1) he was sentenced on inaccurate
information; and (2) his lawyer gave him constitutionally deficient
representation. We disagree and affirm.
¶2 Morgan sexually
assaulted C.W. while she was asleep on
a loveseat at a relative’s home. He was
later charged with second-degree sexual assault (unconscious victim), see Wis.
Stat. § 940.225(2)(d), and bail jumping, see Wis. Stat. § 946.49(1)(a),
because he was on bail on a disorderly-conduct charge at the time of the sexual
assault. DNA evidence confirmed the
¶3 The case was plea bargained and Morgan
was allowed to plead guilty to third-degree sexual assault. The bail-jumping charge was dismissed. The circuit court accepted the plea and
ordered a presentence-investigation report.
Morgan told the presentence-investigation writer that he worked: “as a butcher at the Family Super Saver. I’ve been there over 12 years on and off.” The presentence writer reported that when she
talked to the owner of Family Super Saver, the owner said Morgan:
“would come in now and then and clean
the back, but he did not work here that much.” The writer also reported that the phone number
Morgan had provided for his best
“was an invalid number.” Morgan told the presentence investigator that he had four
children with four different mothers but that: “‘child support has never been ordered on any
of them. I’ve always been part of their
lives and get along with the mothers.’” Morgan
gave the writer contact numbers for two of the mothers, Roberta
May and Rokisha Blue, but the writer found that the numbers were “disconnected”
or “no longer in service.”
¶4 At the start of the sentencing hearing, the circuit court
asked: “Is there any correction to the
material provided in the pre-sentence report?”
to the State’s knowledge, your Honor.
[DEFENSE LAWYER]: None
from the defense. Mr.
Morgan and I did read the PSI in its
entirety. He did take exception with
some of the statements that people provided, but there’s nothing factually
THE COURT: Is that
correct Mr. Morgan?
THE DEFENDANT: Yes,
Later during the sentencing, Morgan’s lawyer told the circuit court:
A couple of things I do want
to bring up with regards to the [presentence-investigation report] I mentioned
earlier that there were things that he took exception with, not necessarily
that they were factually inaccurate, but they somewhat are. …
… the State’s references in
her argument … the issue with regards to how long Mr. Morgan
had worked at Super Saver, what kind of work he had done. As the Court is aware, the owner of that
[store] says that he worked a little bit here and there, but it was certainly
nothing as what Mr.
Morgan claimed. Mr.
Morgan explained to me yesterday while
I was going over the [presentence-investigation report] that it was a cash
job. He worked there quite a bit. I don’t think it was above the board, and
perhaps the owner didn’t want tax implications or something like that.
He did tell me repeatedly, had
told me since the very beginning of the relationship together he did work
full-time and he did work at Super Saver.
I would note that I do recall in [a previous criminal matter] that the
owner of the Super Saver did write a letter on behalf of Mr. Morgan so I don’t
know if there was some kind of falling out or something since that, but in the
past he’s been very helpful.
¶5 The circuit court sentenced Morgan
to fifty-four months of initial confinement, followed by thirty months of
extended supervision. Morgan filed a motion for postconviction relief
seeking resentencing, attaching affidavits from four persons in support:
● Brown, the friend whose telephone
number Morgan gave to the presentence writer, averred that: “he has had a cell phone with the same number
for years but that on occasion [it] would be temporarily out of service when he
did not pay his bill on time,” and he “has observed David Morgan working as a
butcher at Family Super Saver.”
● Blue averred that: “she is the mother of Joshua Morgan,
son of David
was active in … Joshua’s … life and
had regular visitation prior to his incarceration,” and her phone numbers
changed “during the time that David
Morgan was in jail.” She further averred that she “has observed David Morgan
on numerous occasions working as a butcher at Family Super Saver.”
E. Taylor, an investigator with the
State Public Defender, averred that she interviewed May, who “stated she is the
mother of Alicia
Morgan, the daughter of David Morgan.”
She also averred that May confirmed that
“Morgan has always been active in Alicia Morgan’s life.” According to Taylor’s
affidavit, May also indicated that her home phone had been disconnected recently
and “her cell phone number at the time of David Morgan’s
arrest” was slightly different than the one Morgan
gave to the presentence writer.
● David Morgan
averred that: “he is [Morgan’s] son” and that “as he was growing up and
prior to his father’s incarceration he had regular contact with his
father.” The son also: “observed his father working behind the
butcher counter [at Super Saver] and wearing a white butcher’s coat.”
¶6 The circuit court denied Morgan’s motion, finding that the
information in the affidavits: “would
not have caused the court to fashion a different sentence or give such
information more weight.”
¶7 As we have seen, Morgan
claims that the circuit court sentenced him on inaccurate information about his
employment history, and his family and personal relationships. Morgan
points to the following in the circuit court’s sentencing comments:
indicated to the PSI writer that he was employed as a butcher off and on for 12
years at the Family Super Saver. The
owner denied that, said that the defendant only came in occasionally to clean
up in the back and never worked as a butcher.”
gave the agent his best friend’s phone number and the agent found that to be
● “The defendant claims he has four
children, states no child support was ordered.
But he’s always been a part of their lives and gets along with the
mothers. Yet he doesn’t even know where
two of the children live.”
● “What I’m pointing out is there seems
to be a lot of discrepancies in the way the defendant would like to be
perceived as opposed to what reality is.
I don’t think this is just simply a matter of, well, gee, he had a lot
of alcohol. I think that there’s more to
argues that the circuit court thus violated his right to due process. We
¶8 A defendant claiming that a sentencing court denied him or
her due process by relying on inaccurate information must show that: (1) the information was inaccurate; and (2)
the sentencing court actually relied on the inaccurate information. State v. Tiepelman, 2006 WI 66, ¶26,
291 Wis. 2d
179, 192–193, 717 N.W.2d 1, 7. We review
the matter de novo. Id., 2006 WI
66, ¶9, 291 Wis. 2d
at 185, 717 N.W.2d at 3.
¶9 As noted, although Morgan’s lawyer told the circuit court
that there were things in the presentence report with which Morgan took
exception, Morgan affirmed his lawyer’s representation that there was “nothing
factually inaccurate” in the presentence report. As we have also seen, Morgan’s lawyer told the
circuit court that despite what the Super Saver employer indicated, Morgan had
worked for the shop: “repeatedly,
[Morgan] had told me since the very beginning of the relationship together he
did work full-time and he did work at Super Saver.” Thus, Morgan’s
lawyer told the circuit court at sentencing about the employment situation. Insofar as Morgan
contends that his trial lawyer should have presented to the circuit court at
sentencing the material Morgan
submitted in support of his postconviction motion that was not brought out at
the sentencing hearing, we analyze those contentions in an
See State v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 678, 683
N.W.2d 31, 41–42 (in the absence of an objection, we address issues under the
Kimmelman v. Morrison, 477 U.S.
365, 375 (1986) (unobjected-to error must be analyzed under
ineffective-assistance-of-counsel standards, even when error is of
constitutional dimension). As we show
below, Morgan has not shown that the circuit court relied on inaccurate information in sentencing Morgan for the
¶10 To establish ineffective assistance of counsel, a defendant
must show that the lawyer’s representation was deficient and that the defendant
was prejudiced as a result. Strickland v. Washington,
668, 687 (1984). To prove deficient
representation, a defendant must point to specific acts or omissions by the
lawyer that are “outside the wide range of professionally competent
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 689. 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 aspects of the Strickland test if the defendant fails to make a
sufficient showing on either one. See
id., 466 U.S.
¶11 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, are questions of law that we
review de novo. Id., 153 Wis. 2d at 128, 449
N.W.2d at 848. Finally, a circuit court
must hold an evidentiary hearing on a defendant’s ineffective-assistance claim
if the defendant alleges facts that, if true, would entitle the defendant to
relief. See State v. Bentley,
201 Wis. 2d
303, 309, 548 N.W.2d 50, 53 (1996). “Whether
a motion alleges facts which, if true, would entitle a defendant to relief is a
question of law that we review de novo.”
Id., 201 Wis. 2d at 310, 548
N.W.2d at 53. If, however:
“[T]he defendant fails to allege sufficient facts in
his motion to raise a question of fact, or presents only conclusory
allegations, or if the record conclusively demonstrates that the defendant is
not entitled to relief, the trial court may in the exercise of its legal
discretion deny the motion without a hearing.”
201 Wis. 2d
at 309–310, 548 N.W.2d at 53 (quoted source omitted). Under these standards, Morgan’s
contentions fail because he did not show any prejudice.
¶12 Morgan has not shown that the circuit court actually relied on the allegedly
inaccurate information. First, as we
have seen, the circuit court’s observations about the inconsistencies between what
Morgan represented and what the
presentence-investigation writer reported is not by itself unfair reliance and, significantly, Morgan points to nothing that the circuit court said
during sentencing that shows that reliance. Moreover, the circuit court tells us in the
postconviction order that it did not rely on the allegedly inaccurate
information: “The discrepancies noted by
the court went minimally to the defendant’s character, but did not play a
significant role in the amount of time imposed for this offense,” and that the
“information attached” to Morgan’s postconviction motion “would not have caused
the court to fashion a different sentence.” We may, of course, consider a sentencing
court’s postconviction order in determining whether it relied on alleged
inaccurate information during sentencing. See State v.
Fuerst, 181 Wis. 2d 903, 915, 512
N.W.2d 243, 247 (Ct. App.
1994); State v. Schael, 131 Wis. 2d 405, 414, 388 N.W.2d 641, 645 (Ct. App. 1986).
a circuit court has broad sentencing discretion and may give the various
elements of a defendant’s character the weight it deems appropriate. See State v. Steele, 2001 WI App 160, ¶10,
246 Wis. 2d
744, 750, 632 N.W.2d 112, 116. The circuit
court’s sentencing remarks here showed that it relied, appropriately, on the three
primary factors material to a rational sentence: (1) the seriousness of the crime, (2) the
defendant’s character; and (3) the need to protect the public. See McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512, 519 (1971); see also State v. Gallion, 2004 WI 42, ¶¶59–62, 270 Wis. 2d 535, 565–566, 678 N.W.2d 197, 211. It considered the seriousness of the offense,
describing it as “very aggravated” both because Morgan
was a longtime family friend of the victim, and because Morgan
assaulted C.W. while she was asleep in
her sister’s home, “depriv[ing C.W.]
of her personal sense of security.”
¶14 The circuit court also considered Morgan’s
character, noting that Morgan had “an
issue with alcohol” and a prior record, but on the positive side, he “got his
[high school equivalency diploma] while he was in the Job Corps.” The circuit court, however, found the fact
that Morgan committed this crime while
out on bail for drug possession to be a “flagrant” factor.
¶15 The circuit court also emphasized the need to protect the
public: “the public does need to be
protected from his conduct from ever doing this type of conduct again,” that
this crime was “one of the most serious offenses within the third degree sexual
assault,” and that Morgan’s “risk for reoffending” was “at least intermediate severity.”
The circuit court properly exercised its
sentencing discretion. Moreover, we
agree with the circuit court that the matters encompassed by Morgan’s motion for postconviction relief were, in
the context of the crime and circuit court’s sentencing analysis, de minimis. Thus, Morgan has not
satisfied the requirement in Tiepelman to prove actual reliance. See Tiepelman, 2006 WI 66, ¶26, 291 Wis. 2d at 192–193, 717
N.W.2d at 7.
B. Alleged ineffective assistance of Morgan’s trial lawyer.
¶16 Morgan claims his
lawyer was deficient because he did not investigate or present evidence to
correct the circuit court’s “erroneous understanding of his employment history
and family and personal relationships.” (Capitalization omitted.) We have already analyzed and rejected that
claim. Morgan has not, therefore,
shown Strickland prejudice.
By the Court.—Judgment and order affirmed.
Publication in the official reports is not recommended.