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COURT OF APPEALS
DECISION
DATED AND FILED
January 12, 2010
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 III
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In the interest of Jennifer Z., a person under the age of 17:
State of Wisconsin,
Petitioner-Respondent,
v.
Jennifer Z.,
Respondent-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Taylor County: ANN
KNOX-BAUER, Judge. Affirmed in
part; reversed in part.
¶1 BRUNNER, J. Jennifer
Z. appeals a delinquency adjudication on five counts and an order denying her
postdisposition motion to dismiss for the State’s failure to prove venue. She contends she received ineffective
assistance of counsel when her attorney failed to challenge venue in Taylor County
and elicited incriminating testimony that led to an additional count of
delinquency for misdemeanor theft. We
conclude defense counsel’s failure to challenge venue does not constitute
ineffective assistance of counsel, but reverse the delinquency finding on the
misdemeanor theft count because it resulted from testimony her attorney
elicited for no discernible tactical purpose.
We therefore affirm Jennifer’s delinquency adjudication on all counts
but that relating to the additional misdemeanor theft count.
¶2 Jennifer was alleged delinquent on three counts of operating
a motor vehicle without the owner’s consent and one count misdemeanor theft as
party to a crime. The charges arose from
events occurring on May 15, 2008, when Jennifer and John V. fled Jennifer’s
foster home on foot. During their
flight, the pair stole a Jeep. They used
money stolen from a jar of change to purchase gas and Gatorade before they
abandoned the vehicle. They stole a
second car, which they abandoned after smashing it into another vehicle, and
fled on foot from responding authorities.
The pair was apprehended following their third vehicle theft. The circuit court found Jennifer delinquent
on all charges alleged in the petition.
¶3 During the trial, Jennifer’s defense attorney elicited
testimony from Jennifer and an investigating officer suggesting she also stole
a sweatshirt from one of the vehicles.
At the defense attorney’s request, the investigating officer described
all personal property taken from the vehicle, including a Wisconsin Badgers
sweatshirt. When Jennifer testified, her
attorney asked her to testify regarding her acquisition and possession of the
sweatshirt. Jennifer testified she took
the sweatshirt from the car, wore it, and retained possession of it until she
was taken into custody. At the close of
the testimony, the court permitted the State to amend the delinquency petition
to add a fifth count for theft of the sweatshirt. The circuit court rejected Jennifer’s
argument that she did not intend to permanently deprive the owner of the
sweatshirt and found Jennifer delinquent on that count.
¶4 Jennifer filed a postdisposition motion claiming defense
counsel provided ineffective assistance for, among other things, failing to
challenge venue in Taylor County and eliciting incriminating testimony about
the stolen sweatshirt. The circuit court determined venue in Taylor County
was appropriate. The court noted the
Taylor County Human Services Department was granted legal custody of Jennifer
in December 2006 and had made eight to twelve different placements, at no time
with the intent to make those placements Jennifer’s permanent home. Analyzing the statute controlling venue, Wis. Stat. § 938.185(1), the court
concluded Jennifer resided in Taylor
County even though she lived
elsewhere. In addition to denying her
motion to dismiss, the court also denied her motion for a new trial,
speculating her attorney’s questioning related to restitution and finding
Jennifer’s disposition would have been the same without the amended theft
charge.
¶5 Jennifer appeals the circuit court’s denial of her motion to
dismiss and her motion for a new trial, contending the circuit court
incorrectly concluded her defense counsel provided effective
representation. An attorney is
ineffective only if his or her representation was deficient and the defendant
was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S.
668, 687 (1984); State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d 305. “Counsel's conduct
is constitutionally deficient if it falls below an objective standard of
reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. Counsel’s deficient performance is
constitutionally prejudicial if there is a reasonable probability that the
result of the proceeding would have been different absent counsel’s
errors. Id., ¶20. Whether defense counsel rendered ineffective
assistance is a mixed question of law and fact.
Id.,
¶21. We will uphold factual findings,
including those related to counsel’s strategy, unless clearly erroneous, but
whether the attorney’s performance satisfies the constitutional ineffectiveness
standard is a question of law that we review de novo. Id.
¶6 Jennifer first argues her attorney was ineffective for
failing to challenge venue in Taylor
County. The parties agree the only possible basis for
venue in Taylor County is Wis. Stat. § 938.185(1)(a), which locates venue in the county
where the juvenile resides. In State
v. Corey J.G., 215 Wis. 2d 395, 415-16, 572 N.W.2d 845
(1998), our supreme court concluded the term “resides” refers to the juvenile’s
legal domicile. Although the term
“domicile” refers to living in a particular locality with intent to make it a
fixed and permanent home, id. at 415, a legal custodian has
the right to establish the legal domicile of the child, Patrick v. Patrick, 17 Wis. 2d 434, 437,
117 N.W.2d 256 (1962). Hence, a minor
child’s domicile is generally that of his or her parent or parents. Corey J.G., 215 Wis. 2d at 418. In interpreting the statute to provide venue
where the juvenile is domiciled, the court emphasized local courts are
particularly well-suited to establish a suitable program for delinquent
children:
[C]ourt and social services
personnel may be familiar with the child and the family. The local court is sensitive to community
values and is prepared to fashion dispositions to community needs and
resources. Finally, the local juvenile
court is equipped to determine whether or not dispositional alternatives or
supervision programs are helping the child overcome his/her problem.
Id. at
417-18 (quoting Wisconsin Committee to Revise the Juvenile Court
Services Handbook, Handbook for Juvenile Court Services 11 (1977)).
¶7 Here, Jennifer’s legal custodian was the Taylor County Human
Services Department in Taylor
County. The Department had, among other
responsibilities, the obligation to “provide food, shelter, legal services,
education and ordinary medical and dental care.” Wis.
Stat. § 48.02(12). Although the
Department shared some responsibility for these tasks, the decision of
placement rested with the Taylor
County agency. Any determination of Jennifer’s final
placement would occur in that location, and the Department was the primary
authority responsible for establishing Jennifer’s domicile. See Patrick, 17 Wis. 2d at 437. We therefore conclude Jennifer “resides” in Taylor County
for the purposes of venue under Wis.
Stat. § 938.185(1)(a). Jennifer’s
attorney was not deficient for failing to challenge venue because the action
was properly before the circuit court.
¶8 Jennifer also claims
her delinquency adjudication for the sweatshirt theft must be reversed because
it resulted from ineffective assistance of her defense attorney. Although both the investigating deputy and
Jennifer testified regarding the items stolen from the vehicles, in both
instances Jennifer’s defense attorney elicited the incriminating
testimony. Of course, there would be no
basis for reversal if the testimony was elicited as part of counsel’s
ultimately unsuccessful trial strategy. State
v. Oswald, 2002 WI App 2, ¶¶68-69, 232 Wis. 2d 62, 606 N.W.2d 207 (Ct. App.
1999). The State claims defense
counsel’s questions regarding the stolen items served the dual purpose of
impeaching the testimony of John V. and determining the amount of
restitution. Yet the State fails to
identify the testimony Jennifer sought to impeach, and defense counsel’s
questioning would have increased any
restitution owed, not decreased it.
Moreover, defense counsel could not recall at the postconviction hearing
why he elicited the incriminating responses from Jennifer. We conclude defense counsel’s elicitation of
the incriminating testimony was an objectively unreasonable act that
constitutes deficient performance. See Oswald,
232 Wis. 2d
62, ¶¶63-66.
¶9 The deficient
performance led to obvious prejudice in the form of an additional delinquency
adjudication for misdemeanor theft. The
State argues Jennifer has failed to show prejudice because she would have received
the same placement even without the additional theft count. In the State’s view, “[d]efense counsel’s
questioning, leading to the State adding another count of misdemeanor theft, is
minimal error, and does not affect the outcome of the trial.” This position is untenable. A defendant must show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State
v. Sanchez, 201 Wis. 2d 219, 236,
548 N.W.2d 69 (1996) (quoting Strickland, 466 U.S. at 694). No evidence independent of statements
elicited by defense counsel supported the delinquency adjudication for
misdemeanor theft of the sweatshirt.
When requesting the amendment, the prosecutor conceded the only basis
for the additional theft charge was Jennifer’s incriminating statements. The circuit court also acknowledged “the
basis for … misdemeanor theft involving the sweatshirt, came directly from the
juvenile in this case.” Without the
deficient performance of her defense counsel, Jennifer would not have been
adjudicated delinquent on the additional theft charge. Whether she may have received the same
placement on the other charges is irrelevant.
Jennifer has therefore shown she received ineffective assistance of
counsel.
¶10 Ordinarily, the remedy for ineffective assistance of counsel is
a new trial. See State v. Lentowski, 212 Wis. 2d 849, 857,
569 N.W.2d 758 (Ct. App. 1997). However,
the remedy for a deprivation of Sixth Amendment protections “should be tailored
to the injury suffered from the constitutional violation.” United
States v. Morrison, 449 U.S. 361, 364
(1981). The injury suffered here relates
to a specific charge and does not affect the other charges for which Jennifer
was adjudicated delinquent. We reverse
only the delinquency adjudication for misdemeanor theft resulting from
Jennifer’s incriminating testimony.
By the Court.—Judgment and order
affirmed in part; reversed in part.
This opinion will not be
published. See Wis. Stat. Rule 809.23(1)(b)4.