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COURT OF APPEALS DECISION DATED AND RELEASED June 11, 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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 95-3613-CR, 95-3614-CR
95-3615-CR, 95-3616-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
DALE W. REPINSKI,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Eau Claire County:
THOMAS H. BARLAND, Judge. Affirmed.
MYSE, J. Dale Repinski appeals an
order denying his motion to vacate his sentence. Repinski contends that he was denied the effective assistance of
counsel at sentencing because defense counsel failed to: (1) object to the
district attorney's sentence recommendation which Repinski now contends was in
violation of a plea agreement; (2) secure a copy of an addendum to the
presentence investigation prior to the sentencing hearing; (3) request a recess
or continuance when the addendum was presented to counsel at the sentencing
hearing; and (4) explain the possible consequences of consolidating a series of
misdemeanors for sentencing in a single proceeding.
This court concludes
that: (1) Repinski waived his claim that his counsel failed to object to the
district attorney's sentence recommendation because the matter was not raised
at the Machner[1]
hearing; (2) Repinski was not prejudiced by counsel's failure to obtain a copy
of the addendum to the presentence investigation in advance of the sentencing
hearing; (3) Repinski's counsel was not deficient and Repinski was not
prejudiced by counsel's failure to request a recess or continuance; and
(4) Repinski's counsel did discuss the consequences of consolidation with
Repinski and made a reasonable strategic decision to consolidate the offenses
for sentencing. Therefore, this court
affirms the order.
Pursuant to a plea
agreement, Repinski pled guilty to one count of disorderly conduct as a
repeater, one count of resisting an officer as a repeater and one count of bail
jumping as a repeater. The offenses
were consolidated for sentencing purposes.
One aspect of the plea agreement provided that, on the disorderly
conduct charge, Repinski would be able to choose whether the district attorney
would recommend one year in prison consecutive to the other charges or three
years' probation with a withheld sentence consecutive to the other
charges. At the sentencing hearing, the
district attorney recommended one year of prison consecutive to the sentence
imposed on the other charges. Repinski
expressed no preference and did not object to the district attorney's
recommendation.
The original sentencing
hearing was adjourned to obtain additional information regarding Repinski's
opportunity to participate in alcohol treatment and counseling programs. At the adjourned hearing, the State presented
an addendum to the presentence investigation and Repinski's counsel requested a
copy of the addendum because he had not seen the document. Counsel and Repinski studied the addendum
for a short period of time and the sentencing proceeded.
The trial court sentenced
Repinski to three years in prison on the disorderly conduct charge as a
repeater, three years consecutive on the resisting an officer charge as a
repeater, and three years concurrent on the bail jumping charge as a repeater. The trial court also ordered the two
concurrent eight-month sentences imposed for a probation revocation to run
concurrent with the sentences ordered.
Repinski brought a motion to vacate his sentence based on his contention
that he was denied effective assistance of counsel at the sentencing
hearing. After a Machner
hearing, the trial court denied the motion.
Repinski appeals.
To prevail on his claim
of ineffective assistance of counsel, Repinski must show that his counsel's
performance was deficient and the deficient performance prejudiced him at the
sentencing hearing. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). Review of an ineffective assistance of counsel claim involves a
mixed question of law and fact. State
v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 848 (1990). The trial court's findings of fact will not
be disturbed unless clearly erroneous. Id. The legal conclusions of whether the
performance was deficient and prejudicial based on the established facts,
however, are questions of law that this court reviews de novo. Id. at 128, 449 N.W.2d at 848.
Counsel's representation
is deficient if it fell below an objective standard of reasonableness. Strickland, 466 U.S. at
688. There is a strong presumption that
counsel rendered adequate assistance and exercised reasonable professional
judgment in making all significant decisions.
Id. at 690.
Further, counsel's strategies and performance must be reviewed from
counsel's perspective at the time of the hearing. Johnson, 153 Wis.2d at 127, 449 N.W.2d at
847-48. A strategy rationally based on
fact and law will not be found ineffective.
See State v. Hubanks, 173 Wis.2d 1, 28, 496 N.W.2d
96, 106 (Ct. App. 1992).
To show prejudice,
Repinski must demonstrate that the alleged errors actually had an adverse
effect on the outcome. See Johnson,
153 Wis.2d at 129, 449 N.W.2d at 848.
The defendant cannot meet the burden by showing that the errors had some
conceivable effect on the outcome. Id. The question is whether there is a
reasonable probability that, but for counsel's errors, the result of the
proceeding would be different. Id. A reasonable probability is one sufficient
to undermine confidence in the outcome.
Id.
First, Repinski contends
that he was denied effective assistance of counsel because his counsel, Lester
Liptak, failed to object to the district attorney's sentence
recommendation. Repinski, however, did
not raise this issue at the Machner hearing and thus did not give
counsel the opportunity to explain his failure to object. Because Repinski failed to make this inquiry
at the Machner hearing, this claim of ineffective assistance of
counsel has been waived and will not be reviewed by this court. See State v. Machner,
92 Wis.2d 797, 804, 285 N.W.2d 905, 908-09 (Ct. App. 1979).
Next, Repinski claims
that he was denied effective assistance of counsel when Liptak failed to obtain
a copy of the addendum to the PSI in advance of the sentencing hearing and
further failed to request a recess or continuance when he was presented with
the addendum. At the Machner
hearing, Liptak testified that he believed he reviewed the addendum with
Repinski for a brief period after receiving it. In addition, the record at the sentencing hearing reflects that
Repinski reviewed the materials of the addendum with Liptak for a brief period
of time. Liptak testified that he had
sufficient time to review the addendum with Repinski and a further adjournment
was not necessary because the addendum merely confirmed the original PSI.
The trial court found
that there was no new information contained in the addendum other than
Repinski's performance while on probation and his failure to undergo alcohol
treatment. Liptak testified that he
chose not to subpoena and cross-examine the probation agents who provided
information for the addendum because he feared the live testimony would be more
damaging than the information already before the court. Instead, Liptak addressed the information in
the addendum by having Repinski testify to his version of events. This was a reasonable strategic decision
under the circumstances. Based on the
testimony and the trial court's findings of fact, this court concludes that
counsel made reasonable strategic decisions and his failure to request a recess
or a continuance was not deficient performance.
Repinski claims that he
was prejudiced by Liptak's failures because he was denied the opportunity to
address and rebut the information contained in the addendum. Repinski, however, does not identify any
specific evidence which he believes would have rebutted the addendum or any
information that was inaccurate in the addendum other than what he testified to
at the sentencing hearing. In the
absence of any evidence that meaningful rebuttal was available but not offered
by counsel, this court can find no prejudice to Repinski's rights by counsel's
failure to secure a copy of the addendum before sentencing or his failure to
request a recess or continuance.
Finally, Repinski
contends that Liptak was ineffective because he failed to explain to Repinski
the consequences of consolidating the various charges before a single
judge. Repinski argues that there is a
strong likelihood that he would have received a lesser sentence if the charges
had not been consolidated and he had been sentenced by a separate judge on each
charge. This contention is mere
conjecture and devoid of any merit. It
was reasonable for Liptak to conclude that the consolidation would effectively
assure Repinski of the opportunity to reduce the danger that there would be a
series of consecutive sentences imposed for the offenses. Counsel's strategic decision to recommend
consolidation and to avoid serial sentencing hearings was a sound strategic
choice. Therefore, this court concludes
that Liptak was not deficient by recommending that these misdemeanor cases be
consolidated for sentencing purposes.
As to Repinski's claim
that Liptak did not discuss the consolidation with him, this court need only
note that the record reflects the contrary.
At the Machner hearing, Liptak on two occasions testified
that he believed he consulted with Repinski regarding consolidating the charges
for sentencing. To counsel's
recollection, Repinski consented to the consolidation of the charges.
Based upon the foregoing,
this court concludes that Repinski was not denied effective assistance of
counsel at the sentencing hearing.
Therefore, the order is affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.