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COURT OF APPEALS DECISION DATED AND RELEASED January 21, 1997 |
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. |
No. 96-0198
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WILLIAM HARDY
THORNTON, JR.,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
MAXINE A. WHITE, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER
CURIAM. William Hardy Thornton, Jr., appeals from an order denying
his motion for postconviction relief pursuant to § 974.06, Stats.
He raises two issues for review:
whether the trial court erred in denying his postconviction motion
without a hearing; and whether the trial court erred in denying his ineffective
assistance of counsel motion.[1] We reject his arguments and affirm.
I. Background.
In 1992, Thornton was
convicted after a jury trial of two counts of attempted first-degree
intentional homicide while armed; one count of possession of a controlled
substance with intent to deliver while armed and within 1,000 feet of a school;
one count of bail jumping; and one count of failure to pay a controlled
substance tax.
Prior to his original
trial, Thornton had challenged the search and seizure of physical evidence
obtained in an execution of a search warrant.
Thornton's original trial counsel did not present any evidence to
support the challenge, nor did Thornton testify. The original trial court denied the suppression motion,
concluding that Thornton had not established standing to challenge the search
and seizure because he had not established that he had a legitimate expectation
of privacy in the premises where he was searched.
In his direct appeal,
Thornton never raised the issue of the effectiveness of his trial counsel. In his § 974.06 motion, Thornton raises
this issue for the first time. Included
in support of his postconviction motion were affidavits regarding Thornton's
original trial counsel's representation.
Also included was an affidavit of proposed testimony outlining evidence
Thornton would have adduced had his counsel called him at the suppression
hearing.
Without holding an
evidentiary hearing, the trial court denied Thornton's § 974.06 motion,
concluding that the information contained in the affidavits was insufficient to
establish Thornton's standing to challenge the search and, further, that even
if standing would have been granted, the suppression motion would have
failed. This appeal follows.
II. Analysis.
Thornton first argues
that the trial court erred when it denied his ineffective assistance of counsel
motion without a hearing. We disagree.
Our standards of review
on this issue were recently stated in State v. Bentley, 201
Wis.2d 303, 548 N.W.2d 50 (1996):
If the motion on its face alleges facts
which would entitle the defendant to relief, the circuit court has no
discretion and must hold an evidentiary hearing. Whether a motion alleges facts which, if true, would entitle a
defendant to relief is a question of law that we review de novo.
However, if the motion
fails to allege sufficient facts, the circuit court has the discretion to deny
a postconviction motion without a hearing.
Id. at
310‑11, 548 N.W.2d at 53.
Further, if “`the 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.'” Id.
at 309‑10, 548 N.W.2d at 53 (citation omitted).
To succeed in an
ineffective assistance of counsel claim the defendant must satisfy the two-part
test set forth in Strickland v. Washington, 466 U.S. 668
(1984). Thus, “a defendant must show
that counsel's performance was both deficient and prejudicial.” Bentley, 201 Wis.2d at 312,
548 N.W.2d at 54.
Essentially, the trial
court concluded that the alleged evidence presented in Thornton's motion did
not satisfy the prejudice prong of the Strickland test. That is, Thornton failed to raise a factual
question of whether he was prejudiced by the performance of his trial counsel
because he failed to show a reasonable probability that, but for counsel's
alleged deficiency, the suppression motion would have been granted. See Strickland, 466
U.S. at 694.
Thornton's challenge to
the search and seizure is premised on a contention that the search warrant was
invalid because the probable cause supporting the issuance of the warrant had
dissipated by the time the warrant was executed. The warrant was issued on February 6, 1992, but was not executed
until February 10, 1996. Thornton
argues that since probable cause for the warrant was based on an alleged drug
deal that might have been made as many as three days before the warrant's
issuance, the four days that lapsed before the search was executed dissipated
that probable cause.
While a delay in the
execution of a search warrant may invalidate a search or seizure premised on
that warrant, the mere passage of time is not the sole determiner of whether
the warrant's execution was constitutionally timely. State v. Edwards, 98 Wis.2d 367, 372, 297 N.W.2d
12, 15 (1980). Thus, “any consideration
of the timeliness of the execution of a search warrant necessarily requires an
inquiry into the continued existence of probable cause at the time of the
execution.” Id. at 372,
297 N.W.2d at 15.
The proper test for determining the
timely execution of a search warrant is (1) whether the warrant was executed in
compliance with sec. 968.15, Stats., and (2) if such compliance is found,
whether the probable cause which existed at the time of the issuance of the
warrant still continued at the time of its execution.
Id. at
375‑76, 297 N.W.2d at 16.
Further, it is the defendant's burden to prove that probable cause had
dissipated by the time the warrant was executed. Id. at 376‑77, 297 N.W.2d at 17.
The record reflects that
in this case the search warrant was based, at least in part, on an affidavit
detailing a “controlled purchase” of cocaine at the residence at which the
warrant was executed. That affidavit
also contained information that the individuals selling the contraband were
carrying firearms for their protection.
The court commissioner then issued the warrant for drug-related crimes.
Thornton attached a
police report in his postconviction submissions. The report shows that the police had information that the person
operating the “dope house” at which the search warrant was executed drove a
gold-colored BMW automobile. This car
had been spotted at the residence on several days before the issuance of the
search warrant. On the day after the
warrant was issued, however, the BMW was not at the residence; a Chevy Impala
was parked there instead. Three days
later, the police received information that the alleged drug dealer was no
longer driving the BMW, but was driving a blue Chevy that had been seen parked
in front of the residence. The police
then attempted to purchase cocaine at the residence, but were unsuccessful.
They did see the person refusing to sell the drugs to the undercover officers
enter the blue Chevy. At that time, the
police executed the search warrant on the residence.
Given the above information
presented in the original warrant affidavit and the subsequent affidavits
presented with Thornton's § 974.06 motion, we conclude that the trial
court could properly deny the motion without a hearing. Thornton failed to allege facts that would
meet his burden establishing that probable cause had dissipated by the time the
warrant was executed. The undisputed
evidence does not raise any questions of fact over the validity of the
execution of the search warrant. The
evidence shows that the police awaited the appearance of the person allegedly
selling drugs before they executed the warrant. This evidence shows the probable cause had not dissipated between
the time of the issuance and the execution.
Further, the warrant was executed within four days of its issuance,
thereby complying with § 968.15, Stats. Thus, Thornton failed to present sufficient
facts that raised a question of fact that his trial counsel's performance was
prejudicial under Strickland—that is, that the suppression motion
would have been granted had Thornton's trial counsel presented the
evidence. Based on its proper
conclusion that the record demonstrated that Thornton was not entitled to
relief, the trial court validly exercised its discretion in denying the motion
without a hearing. Bentley,
201 Wis.2d at 312, 548 N.W.2d at 57.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.