COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 13, 1996 |
NOTICE |
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. 95-3528-CR
95-3529-CR
95-3530-CR
95-3531-CR
95-3532-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
EDWARD C. BRANDAU,
Defendant-Appellant.
APPEALS from judgments
and an order of the circuit court for Outagamie County: JOSEPH M. TROY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Edward Brandau appeals judgments convicting him on his
no contest pleas of arson, armed robbery, criminal trespass, and two counts of
theft. He also appeals a judgment
convicting him of armed robbery following a jury trial. In addition, he appeals an order denying his
postconviction motions in which he alleged ineffective assistance of his trial
and plea attorneys because they incorrectly advised him that he had no speedy
trial claims and failed to file motions alleging a violation of his speedy
trial rights. The trial court denied
the postconviction motion without a hearing and without considering the merits
after the court lost its authority to proceed under Rule 809.30(2)(i), Stats. We conclude that Brandau's attorneys were
not ineffective and that Brandau was not prejudiced by their failure to raise
the speedy trial issue because the record conclusively shows that Brandau's
speedy trial rights were not violated.
Therefore, we affirm the judgments.
To establish ineffective
assistance of counsel, Brandau must establish that his counsels' performance
was deficient and that their deficient performance prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). An attorney's
performance is not deficient if he fails or refuses to file a nonmeritorious
motion and his client suffers no prejudice from that decision. Because the record conclusively shows that
Brandau's speedy trial rights were not violated, no postconviction hearing is
necessary before the claim of ineffective assistance of counsel can be properly
rejected.
When considering
constitutional speedy trial claims, this court must consider the length of the
delay, the reason for the delay, the defendant's assertion of his right and any
claims of actual prejudice to the defense.
See Barker v. Wingo, 407 U.S. 514, 530 (1972). The State concedes that the delay of
approximately two and one-half years from the filing of the first complaint
until disposition is sufficient to implicate Brandau's speedy trial
rights. However, none of the other
factors support Brandau's claim.
The reason for the delay
is substantially attributable to Brandau.
Brandau fled Wisconsin shortly after the first complaints were
issued. He then committed crimes in Kentucky
and Iowa before he was apprehended.
Iowa and Kentucky had priority over Wisconsin in bringing Brandau to
trial. Wisconsin was not obligated to
attempt to prosecute Brandau while he was awaiting trial in another state. See Foster v. State, 70
Wis.2d 12, 18, 233 N.W.2d 411, 414 (1975).
Upon resolution of the Kentucky charges, Wisconsin promptly commenced
proceedings against Brandau and brought him to trial without delay.
Brandau attempts to hold
Wisconsin responsible for some or all of the delay he encountered in Kentucky
and Iowa because Wisconsin did not attempt to procure his presence by a
governor's warrant or an interstate detainer until after Iowa and Kentucky had
completed their trials. A governor's
warrant could not have compelled Iowa or Kentucky to produce Brandau for trial
in Wisconsin before they completed their prosecution of him. There is no mechanism by which Wisconsin
could compel Iowa to give Wisconsin priority over Kentucky's cases. In addition, Brandau did not promptly act to
compel Kentucky to begin its prosecution of him. The delays in commencing the Wisconsin prosecution are
substantially attributable to Brandau.
Brandau made a demand
for a speedy trial on October 5, 1994 (case no. 94-CF-233) and again on October
28, 1994 (case no. 92-CF-231). Both of
these cases were tried within ninety days of his demand.
Finally, Brandau has
established minimal prejudice from the delay.
At various times, Brandau has claimed loss of memory, places of
employment that went out of business depriving him of an alibi defense
(although he later admitted that he was not employed at the times alibis would
be required) and he finally alleged that his father, who died in July of 1993,
was his alibi witness. Nothing in the
record suggests that his father remembered the days in question or would
provide Brandau with an alibi. Even
assuming that his father would have provided a credible alibi defense, the loss
of that defense is not attributable to the State's conduct. Rather, because his father died before
disposition of the Kentucky charges, any prejudice Brandau suffered is the
result of his absconding and committing crimes in other jurisdictions.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.