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COURT OF APPEALS DECISION DATED AND RELEASED May 15, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 94-1170
95-1199
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANK MACHADO,
Defendant-Appellant.
APPEALS from orders of
the circuit court for Racine County:
EMMANUEL VUVUNAS, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. Frank Machado appeals
pro se from orders denying his § 974.06, Stats.,
postconviction motion and his motion for sentence modification. We conclude that the majority of the issues
raised by Machado are barred by State v. Escalona-Naranjo, 185
Wis.2d 168, 517 N.W.2d 157 (1994). We
further conclude that trial counsel was not ineffective as a consequence of his
substance abuse problem at or about the time of trial.
Machado was convicted in
1987 of second-degree murder with a dangerous weapon and possession of a
firearm as a felon. He received
consecutive prison terms of twenty-five years and two years respectively. On direct appeal after a postconviction
motion, Machado argued that trial counsel was ineffective with respect to jury
instructions on self-defense and accident.
We also considered issues raised by Machado pro se regarding alleged Miranda
violations, an error in impaneling the jury and a misstatement of the law by
the trial court in the proposed jury instructions. We affirmed the convictions in State v. Machado,
No. 88-2203-CR (Wis. Ct. App. Aug. 2, 1989) (per curiam).
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
We recite the procedural
history of this case because it is the underpinning for our holding that the
majority of Machado's claims are barred.
In February 1994, Machado filed a motion deemed brought under
§ 974.06, Stats., alleging
that his sentence was unlawful and excessive and that the jury should have been
instructed on other lesser-included offenses.
In his supporting brief, Machado argued that trial counsel was
ineffective because he failed to: (1)
call witnesses at trial, (2) request certain jury instructions, (3) object to
the joinder of the firearm charge, and (4) choose a proper theory of
defense. Machado also alleged that
trial counsel suffered from substance abuse at the time of trial which affected
his performance. The trial court denied
Machado's motion in an order entered May 4, 1994.[1]
Machado then filed a
supplement to his § 974.06, Stats.,
motion alleging that trial counsel suffered from alcohol and drug problems at
the time of the 1987 trial and that these difficulties affected counsel's
judgment and performance. Machado also
claimed that trial counsel failed to advise him of these difficulties at
the time of trial. An evidentiary
hearing was held on October 26, 1994.[2] At that hearing, trial counsel testified
that although he had a drug and alcohol problem in 1987, he did not use drugs
or alcohol while working on the trial.
Machado also questioned counsel regarding certain strategic decisions he
made regarding witnesses, use of evidence and jury instructions.
In its findings after
the hearing, the trial court acknowledged counsel's admissions regarding drug
and alcohol problems in 1987. The court
found that counsel "did a very excellent job for [Machado] at the trial"
and that counsel did not perform deficiently.
In its written order denying the motion, the court found that counsel's
representation was not affected by his drug and alcohol problems. On the question of the jury instructions,
the court found that the issue was addressed on direct appeal and
rejected. The court also found that the
sentence was appropriate and that joinder of the firearm charge was
appropriate.
With the exception of
Machado's claim that trial counsel was ineffective due to alcohol and drug
problems, we do not reach the merits of his challenge to the order denying his
§ 974.06, Stats., motion
because we conclude that § 974.06(4) as construed in Escalona-Naranjo
precludes Machado from pursuing these issues.
Under Escalona-Naranjo, an issue which could have been
raised in a postconviction motion under § 974.02, Stats., and on direct appeal may not be raised in a motion
under § 974.06 unless the trial court ascertains that a sufficient reason
exists for the defendant's failure to raise the issue in his or her
original motion. Escalona-Naranjo,
185 Wis.2d at 185-86, 517 N.W.2d at 163-64.[3]
Machado's motion and
supplemental motion did not offer any reason for not having raised all of his
ineffective assistance of trial counsel claims in his direct appeal. See id. at 185, 517
N.W.2d at 163. The question of the
assistance rendered by trial counsel was presented on direct appeal and no
reason is offered for not having presented all grounds as part of the direct
appeal. The Escalona-Naranjo
bar is particularly appropriate where, as here, this court took the unusual
step of considering arguments made by Machado pro se on appeal.
We will, however, review
whether trial counsel was ineffective because he was experiencing problems with
drugs and alcohol at or about the time of trial because evidence of counsel's
alleged impairment apparently surfaced subsequent to the direct appeal in this
case.
To prevail on a claim of
ineffective assistance of counsel, a defendant must prove: (1) that his or her counsel's action
constituted deficient performance, and (2) that the deficiency prejudiced his
or her defense. State v. Brewer,
195 Wis.2d 295, 300, 536 N.W.2d 406, 408 (Ct. App. 1995). Whether counsel's actions constitute
ineffective assistance is a mixed question of law and fact. State v. Smith, 170 Wis.2d
701, 714, 490 N.W.2d 40, 46 (Ct. App. 1992), cert. denied, 507 U.S. 1035
(1993). "The trial court's
findings of what the attorney did and the basis for the challenged conduct are
factual and will be upheld unless clearly erroneous. However, whether the attorney's conduct amounted to ineffective
assistance is a question of law which we review de novo." Id. (citation omitted).
When we address whether
counsel's performance was deficient, we determine whether trial counsel's
performance fell below objective standards of reasonableness. State v. McMahon, 186 Wis.2d
68, 80, 519 N.W.2d 621, 626 (Ct. App. 1994).
This standard encompasses a wide range of professionally competent
assistance. Id. "We do not look to what would have been
ideal, but rather to what amounts to reasonably effective
representation." Id. The defendant has the burden to prove that
counsel was deficient; counsel is presumed to have provided adequate
assistance. Brewer, 195
Wis.2d at 300, 536 N.W.2d at 409.
We turn first to the
trial court's findings regarding whether counsel was impaired during trial as a
result of his drug and alcohol problems.
Assessing the credibility of trial counsel's testimony at the
postconviction motion hearing was the trial court's responsibility. See Village of Big Bend v.
Anderson, 103 Wis.2d 403, 410, 308 N.W.2d 887, 891 (Ct. App.
1981). The court found that counsel's
drug and alcohol problems did not manifest themselves during trial. The trial court's finding is not clearly
erroneous. In light of this finding, we
conclude that Machado has not sustained his burden to prove that counsel
performed deficiently.
SENTENCE MODIFICATION
In October 1994, Machado
moved the trial court to modify his sentence on the ground that the five-year
enhancement of his second-degree murder sentence was invalid or, in the
alternative, that his sentence should be modified because the time he had already
served in prison was sufficient.
Machado also claimed that his trial counsel was ineffective at
sentencing. The trial court denied the
motion on the grounds that no new factor existed requiring resentencing and the
length of the sentence was not excessive.[4]
Although the trial court
found no new factors warranting sentence modification, we conclude that
Machado's claim that his twenty-five-year sentence was unlawful was the type of
claim which had to have been brought under § 974.06, Stats., and did not require application
of the new factor test. See State
v. Coolidge, 173 Wis.2d 783, 788, 496 N.W.2d 701, 704-05 (Ct. App.
1993). Because this claim should have
been raised in a § 974.06 motion, it is subject to the Escalona-Naranjo
bar.
Machado's February 1994
§ 974.06, Stats., motion
alleged that his sentence was unlawful.
The trial court denied the motion in May 1994. The record on appeal does not contain a transcript of proceedings
apparently held on April 22, 1994, on the February 1994 motion. Accordingly, this court must assume that the
trial court considered Machado's challenge to his sentence and rejected
it. See State v. Smith,
55 Wis.2d 451, 459, 198 N.W.2d 588, 593 (1972) (appellant is responsible for
presenting complete record on appeal and material omission will be construed
against appellant); see also Suburban State Bank v. Squires,
145 Wis.2d 445, 451, 427 N.W.2d 393, 395 (Ct. App. 1988) (when appeal brought
on incomplete record, we assume facts essential to sustain trial court's ruling
are supported by the record).
We conclude that Machado
challenged his sentence in his original February 1994 § 974.06, Stats., motion, and he has not offered
a sufficient reason for raising it again in October 1994. Successive postconviction motions under
§ 974.06 are prohibited unless there is a finding of a sufficient reason
for the subsequent motion. State
ex rel. Dismuke v. Kolb, 149 Wis.2d 270, 273, 441 N.W.2d 253, 254 (Ct.
App. 1989). The record does not reveal
a sufficient reason.
By the Court.—Orders
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The record on appeal does not contain a transcript of the argument heard by the court on April 22, 1994.
[2] The trial court characterized the proceedings as a "re-hearing" of Machado's previously filed motion.
[3] We recognize that the issue of whether Machado's motion should be denied based on State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), and § 974.06(4), Stats., was not raised in the trial court or relied on by the trial court in denying the motion. However, it is well-established that this court may sustain a trial court's ruling on grounds which were not presented in the trial court. State v. Holt, 128 Wis.2d 110, 125, 382 N.W.2d 679, 687 (Ct. App. 1985).