COURT OF APPEALS DECISION DATED AND RELEASED January 22, 1997 |
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
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This opinion is subject to
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No. 96-0352-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RONALD L. RAGAN,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Washington County: LAWRENCE F. WADDICK, Judge. Affirmed.
Before Snyder, P.J.,
Brown and Nettesheim, JJ.
NETTESHEIM, J. Ronald
L. Ragan appeals from a judgment of conviction for filing a false declaration
of candidacy pursuant to § 12.13(3)(a), Stats. Ragan also appeals from the trial court's
denial of his motion for postconviction relief.
On appeal, Ragan
challenges his conviction on three grounds.
First, Ragan argues that his double jeopardy rights were violated when
the trial court granted a retrial following a mistrial declaration. We conclude that the retrial did not violate
Ragan's protection against double jeopardy.
Second, Ragan claims
that his trial counsel was ineffective.
Specifically, he argues that his counsel improperly failed to object to
the retrial on double jeopardy grounds, failed to object to certain remarks
made by the prosecution during closing arguments, failed to raise the defense
of mistake, and failed to challenge the sufficiency of the complaint and
bindover.
Since we will address
the double jeopardy issue on the merits in the interests of justice, we need
not address it in the context of ineffective assistance of counsel. As to the remaining claims, we hold that
counsel was not ineffective for failing to object to the prosecutor's closing
argument and for failing to raise the defense of mistake. We do hold that counsel was ineffective for
failing to challenge the complaint and bindover, but we conclude that Ragan was
not prejudiced.
Third, Ragan argues that
the evidence was insufficient to support the jury's guilty verdict. We disagree. We affirm the judgment of conviction and the postconviction
order.
FACTS
On January 3, 1994,
Ragan filed with the town clerk for the Town of Erin a notarized declaration of
candidacy form for the position of town supervisor. The preprinted declaration of candidacy included the following
language: “I have not been convicted of
any infamous crime for which I have not been pardoned except the felony
convictions on the attached list.”
Ragan signed and filed the form without listing any prior
conviction. Nor did he otherwise notify
that he had previously been convicted of a felony. Ragan won the election.
Ragan, however, had
previously been convicted of felony theft in Milwaukee county in 1976 when he
was twenty years old. As a result of
Ragan’s failure to give notice of this prior conviction, the State filed a
criminal complaint charging Ragan with false swearing contrary to §
946.32(1)(a), Stats., and
falsifying information with respect to a declaration of candidacy contrary to §
12.13(3)(a), Stats. The false swearing charge was dismissed at
the preliminary hearing. The falsifying
information charge proceeded to a jury trial.
Prior to trial, the
State filed a motion in limine seeking to exclude at trial any reference to the
fact that Ragan had won the election but had not been seated for the position
of town supervisor. In support of its
motion, the State argued that such evidence was inadmissible and that the jury
might conclude that Ragan's loss of the position he had won in the election
might be sufficient punishment. The
trial court agreed and granted the State’s motion.
Contrary to this ruling,
a defense witness testified before the jury that Ragan had won the
election. The State moved for a
mistrial. The court granted the motion
over Ragan's objection. Without further
objection from Ragan, the matter proceeded to a retrial and the jury found
Ragan guilty. Later, the trial court
rejected Ragan's motion for postconviction relief, including his claims of
ineffective assistance of counsel.
Ragan appeals. We will recite
additional facts as we address the appellate issues.
DISCUSSION
Double Jeopardy
Ragan first argues that
the trial court erred by failing to engage in the requisite “manifest
necessity” analysis prior to granting the mistrial request by the State. As such, Ragan contends that the retrial
violated his double jeopardy rights.
Although Ragan objected to the mistrial request, he acknowledges that he
did not object to the retrial on the basis of double jeopardy. Thus, Ragan concedes, pursuant to State
v. Mink, 146 Wis.2d 1, 10, 429 N.W.2d 99, 102 (Ct. App. 1988), that he
has waived this issue. (“[When the
state seeks a retrial], the defendant must move for dismissal on double
jeopardy grounds to avoid waiver.”)
Because the issue is
waived, Ragan urges this court to review his double jeopardy claim “in the
interests of justice.” See State
v. Moesly, 102 Wis.2d 636, 652, 307 N.W.2d 200, 209-10 (1981) (An
appellate court may consider an alleged constitutional error “in the interests
of justice,” even if the error was insufficiently preserved for appeal.); § 752.35, Stats. The State responds that we should not
address the issue in the interests of justice because Ragan has not shown a
substantial probability of a different result on retrial and therefore justice
has not miscarried. See Vollmer
v. Luety, 156 Wis.2d 1, 16, 456 N.W.2d 797, 805 (1990).
The State's argument may
be well taken. However, this case is
unusual because this issue is also raised in Ragan's ineffective assistance of
counsel argument. There he contends
that his trial counsel was ineffective for failing to raise a double jeopardy
claim. But that failing would
constitute defective performance by counsel only if a manifest necessity for
the mistrial did not exist in the first place.
Thus, we would have to address the manifest necessity question in any
event. We choose to address it under
Ragan's interests of justice argument.
In reviewing a double
jeopardy claim based on mistrial, the question is whether, under all of the
facts and circumstances, it was reasonable to grant a mistrial under the
“manifest necessity” rule. See
Mink, 146 Wis.2d at 10, 429 N.W.2d at 103 (citing State v.
Copening, 100 Wis.2d 700, 710, 303 N.W.2d 821, 826-27 (1981)). Considerable deference is normally given to
the trial court's determination of “manifest necessity” because that court is
in the best position to make a first-hand assessment of the prejudice
consideration. See Mink,
146 Wis.2d at 10, 429 N.W.2d at 103.[1]
Here, the State brought
a pretrial motion in limine to exclude evidence that Ragan had won the election
for town supervisor but had been denied the position. The State’s request was based on two concerns. First, the evidence was irrelevant to the
charge of filing a false declaration of candidacy. Second, the State sounded a jury nullification concern, arguing
that “if the Jury hears that [Ragan] was elected and/or that he was not seated,
they may feel that he’s already been punished enough; and that might influence
their findings of fact in this case.”
The trial court granted the State’s motion in limine.[2]
Although the correctness
of the trial court's motion in limine ruling is not before us, we observe that
the ruling was obviously correct from an evidentiary standpoint. Whether Ragan won the election and whether
he was seated were clearly irrelevant to the charge of falsifying information
on the declaration of candidacy.
When a defense witness
later testified before the jury that Ragan had been elected to the office, the
State moved for a mistrial. Ragan
opposed the motion, suggesting instead that the trial court give the jury a
curative instruction. The court
rejected this suggestion and declared a mistrial. Although the court did not use the phrase “manifest necessity,”
the court harkened back to the State's argument at the motion in limine that
Ragan's winning the election but not being seated might constitute punishment
enough in the mind of the jury.[3] In addition, the court expressed a concern
that the cautionary instruction “would be a reasonable inference for the Jury
to conclude that ¼
there had been an election successfully run by this candidate and that he had
not continued in office; and we're back to Square One.” Thus, the court was legitimately concerned
that a cautionary instruction would reinforce, rather than diminish, the effect
of the improper testimony.
This issue touches on
the dynamics of the courtroom and the fairness of the trial as sensed and
evaluated by the trial court when the event occurred. As such, the trial court was in the best position to assess the effect
of the improper testimony on the jury.
Since the court's motion in limine ruling was correct from an
evidentiary standpoint, and given the deference which we properly accord the
trial court's manifest necessity ruling, we conclude that the court did not misuse
its discretion in declaring the mistrial.[4]
Ineffective Assistance of Counsel
To succeed on a claim of
ineffective assistance of counsel, Ragan must show that his attorney's
performance was deficient and that the deficient performance prejudiced his
defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
The test for measuring an attorney's performance is the reasonableness
of counsel's challenged conduct on the particular facts of the case, viewed as
of the time of counsel's conduct. Id.
at 690; State v. Pitsch, 124 Wis.2d 628, 636, 369 N.W.2d 711, 716
(1985). There is a strong presumption
that the attorney has rendered effective assistance and made all significant
decisions while exercising reasonable professional judgment. Strickland, 466 U.S. at 689.
Our supreme court has
stated that it disapproves of postconviction counsel second-guessing trial
counsel's considered selection of trial tactics or the exercise of a
professional judgment in the face of alternatives that have been weighed by
trial counsel. State v. Felton,
110 Wis.2d 485, 502, 329 N.W.2d 161, 169 (1983). Trial counsel is free, after considered judgment, to select a
particular tactic among available alternatives. See id. at 501-02, 329 N.W.2d at 169. This court will not find ineffective
assistance of counsel even though in hindsight it is apparent that a more
appropriate decision could have been made.
Id. at 502, 329 N.W.2d at 169.
If we agree with the
trial court’s conclusion that Ragan’s trial counsel did not provide ineffective
assistance, we need not decide whether counsel’s performance was
prejudicial. See State v. Johnson,
153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990) (reviewing court may dispose of
ineffective assistance claim on either ground). If Ragan succeeds in proving that counsel’s performance was
deficient, he must also show that there is a reasonable probability that, but
for trial counsel's unprofessional errors, the result of the proceeding would
have been different. Strickland,
466 U.S. at 694; State v. Sanchez, 201 Wis.2d 219, 236, 548
N.W.2d 69, 76 (1996).
Ineffective assistance
of counsel claims present mixed questions of law and fact. Pitsch, 124 Wis.2d at 633-34,
369 N.W.2d at 714. The trial court's
findings of fact will not be disturbed unless clearly erroneous. Id. at 634, 369 N.W.2d at
714-15. However, the determinations of
whether counsel's performance was deficient and prejudicial are questions of
law, which we review de novo. Id.
at 634, 369 N.W.2d at 715.
With these standards in
mind, we now turn to Ragan's specific ineffective assistance of counsel claims.
A. Double Jeopardy
Ragan first contends
that trial counsel was ineffective for failing to raise the double jeopardy
issue prior to the retrial, thus waiving his right to appeal on that
issue. However, we have already
addressed that question on the merits and upheld the trial court's
determination that a mistrial was manifestly necessary. Thus, Ragan's double jeopardy rights were
not violated by the retrial. See
Mink, 146 Wis.2d at 11-12, 429 N.W.2d at 103. Therefore, trial counsel was not ineffective
for failing to raise the issue. Nor was
Ragan prejudiced by the retrial since any double jeopardy challenge would have
failed.[5]
B. Closing Arguments
Ragan next contends that
trial counsel was ineffective for failing to object to certain remarks made by
the prosecutor during closing arguments.
Specifically, Ragan argues that the prosecutor misrepresented Ragan's
obligations under the law as it pertained to Ragan's theory of defense.
Ragan's defense was that
he did not know that the prior theft conviction was for a felony. In response to this defense, the prosecutor
stated during his rebuttal closing argument that Ragan was obligated to
investigate the nature of his prior conviction before filing the Declaration of
Candidacy. Ragan argues that this was
improper because the question for the jury was his knowledge at the time of the
filing, not whether he had investigated his prior conviction.
At the Machner
hearing, trial counsel testified that “initially [he] was about to jump out of
[his] seat when the DA started talking in that matter ¼.” However, he chose not to object because he knew
that the trial court would shortly instruct the jury, inter alia, that the
State had to prove that Ragan knew that the information in the declaration was
false. Based on this testimony, the
trial court determined that trial counsel had made a strategic decision not to
object.
We agree with the trial
court's ruling for a number of reasons.
First, the trial court did, in fact, instruct the jury as trial counsel
anticipated. The court told the jury that
it was to measure Ragan's knowledge as of the time of the filing. We have repeatedly said that we assume the
jury follows the instructions of the trial court. Nowatske v. Osterloh, 198 Wis.2d 419, 448, 543
N.W.2d 265, 276 (1996). Second, the
trial court told the jury that the arguments of counsel were not evidence. Third, Ragan's own final argument was in
keeping with the instruction given by the trial court.
With the benefit of
hindsight, we perhaps might say that it would have been better had counsel
objected. But, as we have noted, we
will not find counsel ineffective based on strategic decisions which in
hindsight may not have been the most appropriate. See Felton, 110 Wis.2d at 502, 329 N.W.2d at 169.
C. Mistake Defense
Next, Ragan argues that
trial counsel was ineffective for failing to raise the defense of mistake under
§ 939.43(1), Stats.[6] However, Ragan did not specifically raise
this issue at the Machner hearing. In State v. Machner, 92 Wis.2d 797, 804, 285 N.W.2d
905, 908 (Ct. App. 1979), the court concluded that:
[W]here
a counsel's conduct at trial is questioned, it is the duty and responsibility
of subsequent counsel to go beyond mere notification and to require counsel's
presence at the hearing in which his conduct is challenged. We hold that it is a prerequisite to a claim
of ineffective representation on appeal to preserve the testimony of trial
counsel. We cannot otherwise determine
whether trial counsel's actions were the result of incompetence or deliberate
trial strategies.
Although trial counsel
was questioned regarding possible defenses, Ragan’s appellate counsel never
directly inquired as to why a mistake defense was not raised. Because trial counsel did not have the
opportunity to offer an explanation as to this issue, we deem it waived. See id. at 804, 285 N.W.2d at 908-09.[7]
D.
Failure to Challenge Complaint and Bindover
As his final challenge
to trial counsel's effectiveness, Ragan argues that counsel should have
challenged the sufficiency either of the criminal complaint or the evidence at
the preliminary hearing. Specifically,
Ragan contends that neither the complaint nor the preliminary hearing evidence
established that his prior felony theft conviction was an “infamous crime”
within the meaning of art. XIII, § 3 of the Wisconsin Constitution.
In order to put this
issue in its proper perspective, we first address the applicable constitutional
and statutory provisions.
We begin with the
Wisconsin Constitution. Article XIII,
§ 3 recites eligibility requirements for public office. Among other provisions, it bars any person
who has been convicted of an infamous crime from holding public office.[8]
Next, we address the
statutes. Section 12.13(3)(a), Stats., makes it illegal for any person
to, inter alia, “[f]alsify any information in respect to ¼ a ¼
declaration of candidacy ¼.” This is the crime which the State charged
against Ragan. Unlike the
constitutional provision, this statute does not set out eligibility
requirements for public office. Rather,
it is a criminal statute which makes it a crime to falsify certain information
on a declaration of candidacy.
Next, we look to
§ 8.21, Stats., which sets
out the components of a declaration of candidacy. These include a statement that the candidate “has not been
convicted of any infamous crime for which he or she has not been pardoned and
a list of all felony convictions for which he or she has not been pardoned.” (Emphasis added.) In addition, a declaration of candidacy must be “sworn to before
any officer authorized to administer oaths.”
Id.
Insofar as a prior
criminal record is concerned, these constitutional and statutory provisions
teach the following: the constitution
speaks only of an unpardoned “infamous crime,” whereas § 8.21, Stats., speaks of both unpardoned
“infamous crime[s]” and unpardoned felony convictions. A candidate can violate the statute by
failing to report either category of offense. Thus, the criminal provisions of the statute take in more than
the eligibility requirements of the constitution.
We now turn to the facts
and procedure of this case. Ragan was
charged under § 12.13(3)(a), Stats.,
with falsifying information on a declaration of candidacy. In support of this charge, the factual
allegations of the complaint recited Ragan's prior felony theft
conviction. However, the charging
portion of the complaint did not specifically advise which alternative form of
the crime the State was alleging: a
failure to reveal a conviction for an infamous crime or a failure to reveal any
prior felony conviction.
The factual allegations
of the complaint, however, attached and incorporated a copy of Ragan's
declaration of candidacy. This
declaration recited in relevant part:
“I have not been convicted of any infamous crime for which I have not
been pardoned except the felony convictions on the attached list.” (Emphasis added.) This language was not in keeping with § 8.21, Stats., because it catalogued prior
felony convictions under the ambit of infamous crimes. Therefore, unlike the statute which required
Ragan to reveal unpardoned infamous crimes and all unpardoned felony
convictions, the preprinted form only obligated Ragan to state his prior
unpardoned infamous crime felonies.
Whether or not consciously drafted to achieve this result, the declaration
form necessarily restricted the State's charging in this case to only the
infamous crime portion of § 8.21.
That brings us to the
nub of Ragan's ineffective assistance of counsel claim. Ragan contends that his felony theft
conviction did not, as a matter of law, qualify as an infamous crime and that
his trial counsel was ineffective for failing to raise this issue at either the
complaint or preliminary hearing stage of the proceedings.[9] In response to this claim, Ragan's trial
counsel testified that because § 8.21, Stats.,
envisions two alternative methods for violating § 12.13(3)(a), Stats., and since the complaint alleged
a prior felony conviction, a challenge to the complaint or the evidence at the
preliminary hearing would not have been successful. As our above discussion reveals, we agree with trial counsel's
analysis of the statute.
However, trial counsel's
analysis did not go far enough because he failed to discern that the
declaration of candidacy, by its very terms, limited the convictions
which Ragan was obligated to disclose to unpardoned infamous crimes “except the
felony convictions on the attached list.”
Therefore, if felony theft was not an infamous crime, counsel missed the
opportunity to obtain a dismissal of the charge at either the complaint or
preliminary hearing stage of the proceedings.
Whether counsel was
ineffective, however, depends on whether the law would arguably support such a
challenge. We thus look to the limited
Wisconsin law on this question. In Becker
v. Green County, 176 Wis. 120, 184 N.W. 715 (1922), the supreme court
held that a crime punishable by imprisonment in a state prison, i.e., a felony,
is an infamous crime within the meaning of art. XIII, § 3 of the Wisconsin
Constitution. Id. at 124,
184 N.W. at 717. In Law
Enforcement Standards Bd. v. Village of Lyndon Station, 98 Wis.2d 229,
238-46, 295 N.W.2d 818, 823-27 (Ct. App. 1980), the court of appeals upheld the
disqualification of a police chief on a variety of grounds, including this
language of the supreme court in Becker. Lyndon Station, 98 Wis.2d at
238-46, 295 N.W.2d at 823-27.
On further review, the
supreme court affirmed the court of appeals decision in Lyndon Station. Law Enforcement Standards Bd. v.
Village of Lyndon Station, 101 Wis.2d 472, 497, 305 N.W.2d 89, 101
(1981). However, in so doing, the
supreme court did not find it necessary to address the constitutional basis of
the court of appeals decision.
Nonetheless, the supreme court stated that it disavowed the court of
appeals language that all felonies constitute infamous crimes within the
parameters of art. XIII, § 3. Id.[10]
Thus, at the time of
Ragan's prosecution in this case, it was an open question as to which felonies
constituted infamous crimes within the meaning of art. XIII, § 3 of the
Wisconsin Constitution.[11] This question left open, we conclude that
principles of effective representation required Ragan's trial counsel to pursue
this avenue of possible dismissal.
Therefore, we conclude that trial counsel was ineffective.[12]
That brings us to the
question of prejudice. When counsel’s
performance has been deficient, the court must also find that there is a
reasonable probability that but for trial counsel's unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at 694; Sanchez,
201 Wis.2d at 236, 548 N.W.2d at 76. A
reasonable probability is a probability sufficient to undermine our confidence
in the outcome. State v. Littrup,
164 Wis.2d 120, 136, 473 N.W.2d 164, 170 (Ct. App. 1991).
In order to determine if
the result would have been different, we must answer whether felony theft is an
infamous crime. As our analysis of the
Wisconsin case law has demonstrated, this question is unanswered. We thus look to other sources for
assistance.
Ragan principally relies
on the dictionary definition of “infamous” for support. He notes that “infamous” is defined in terms
of reputational disgrace brought about by something grossly criminal, shocking,
brutal or evil.
The case law, however,
has not adopted this more aggravated concept of “infamous.” Instead, “infamous” has been measured from
two standards which have sometimes overlapped:
(1) the penalty associated with the crime, and (2) whether the crime is
inconsistent with commonly accepted principles of honesty and decency.
We first look to the
federal cases. The Fifth Amendment to
the United States Constitution provides, in part, “No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury ¼.” Relying on
this language, federal court defendants indicted by information rather than by
grand jury have sometimes challenged indictments by arguing that the crime
alleged is “infamous.”
In one such case, the
Ninth Circuit observed that the punishment attached to the crime is relevant to
whether the crime is infamous. See
United States v. Yellow Freight Sys., Inc., 637 F.2d 1248, 1254 n.7
(9th Cir. 1980). The court noted that
“crimes punishable by confinement to a penitentiary are infamous” and that “[i]n
the case of crimes by individuals, the possibility of imprisonment for more
than one year, and therefore in a penitentiary, remains the most reliable index
of infamy.” Id. Similarly, in United States v.
Driscoll, 612 F.2d 1155, 1156 (9th Cir. 1980), the same court stated
that “[t]he length of penalty is now the most reliable index of whether a crime
is infamous, as that term is used in the fifth amendment.” Since the penalty for the offense in Driscoll
was less than one year, the court concluded that the crime was not
infamous. See id.
In this case, Ragan's
prior felony theft conviction carried penalties of a fine of not more than
$5000 and a term of imprisonment of not more than five years in the state
prisons. Section 943.20(3)(b), Stats., 1975. By this measure, Ragan's prior conviction was for an infamous
crime. However, such a holding would
run afoul of our supreme court's statement in Lyndon Station that
not all felonies are infamous crimes. See
Lyndon Station, 101 Wis.2d at 497, 305 N.W.2d at 101.
Next, we look to certain
case law from Illinois. We find these
cases instructive because they address infamous crime in the context of
eligibility to hold public office. Although
Ragan's case is a criminal case, not an eligibility case, his conviction stems
from the information which he claimed made him an eligible candidate for public
office.
Rather than looking to
the extent of the punishment, the Illinois cases are built on the common law
principle that “[a]n infamous crime at common law was an act, the commission of
which was inconsistent with the commonly accepted principles of honesty and
decency, or one which involves moral turpitude.” Keenan v. McGuane, 150 N.E.2d 168, 175 (Ill. 1958)
(quoted source omitted). See also
Symonds v. Gualano, 240 N.E.2d 467, 468 (Ill. App. Ct. 1968); City
of Kankakee v. Morris, 467 N.E.2d 589, 592-93 (Ill. App. Ct. 1984).[13] We adopt this test for purposes of measuring
whether a crime is infamous under Wisconsin law. Under this test, we conclude that felony theft is inconsistent
with the commonly accepted principles of honesty and decency.
If we were ranking the
severity of felonies in a vacuum, we perhaps might say that felony theft falls
on the lower end of the scale. However,
we deal here with the qualifications of a candidate to hold public office and
the eligibility representations made by that candidate when seeking such
office. Viewed in this context, the
seriousness of such a conviction begins to take on greater significance.
The expectation of
attaining or holding public office is a privilege, not a civil right. Morris, 467 N.E.2d at
592. The law is more concerned with the
public interest in good government and confidence in its public officers than a
defendant's privilege in holding public office. Id. A
conviction for felony theft destroys the public confidence in an elected
official who carries that stigma. See
id. As such, Ragan was
duty bound to reveal it on his declaration of candidacy.
Sufficiency of the Evidence
Finally, Ragan
challenges the sufficiency of the evidence.
Specifically, he contends that the State failed to prove the following
elements of the offense under § 12.13(3)(a), Stats.: (1) that he actually “filed” a declaration
of candidacy within the meaning of § 8.21, Stats.;
(2) that the declaration of candidacy was false in a material respect; and (3)
that he filed the declaration knowing that it was falsely made.
Before a reviewing court
will reverse a jury verdict, there must be “such a complete failure of proof
that the verdict must have been based on speculation.” Nieuwendorp v. American Family Ins.
Co., 191 Wis.2d 462, 472, 529 N.W.2d 594, 598 (1995). Therefore, we will sustain a jury verdict if
there is any credible evidence to support the verdict, sufficient to remove the
question from the realm of conjecture. Id. Our consideration of the evidence must be
done in the light most favorable to the verdict, and when more than one
inference may be drawn from the evidence, we are bound to accept the inference
drawn by the jury. Id. This is even more true where the verdict has
the trial court's approval. Fehring
v. Republic Ins. Co., 118 Wis.2d 299, 305, 347 N.W.2d 595, 598 (1984), overruled
on other grounds by DeChant v. Monarch Life Ins. Co., 200
Wis.2d 559, 547 N.W.2d 592 (1996).
Ragan's arguments that
he did not “file” the declaration and that it was not false in a material
respect rest on his contention that the declaration was not “sworn to before
any officer authorized to administer oaths” as required by § 8.21, Stats.
In support, he contends that the evidence does not show that Debra
Zerbst, the town clerk with whom Ragan filed the declaration, was authorized to
administer oaths. We disagree. The evidence includes the declaration of
candidacy form which was signed by Ragan and notarized by Zerbst. Section 887.01(1), Stats., provides that a notary, among others, is authorized
to administer an oath. Absent any
evidence to the contrary, we hold that this evidence demonstrates that Zerbst
was authorized to administer an oath and her notary establishes that such
occurred.
In addition, Zerbst
testified that Ragan signed the declaration in her presence and filed it with
her on January 3, 1994. On its face,
the declaration fails to recite Ragan's prior conviction. And since we have already concluded that the
felony theft conviction was for an infamous crime, we conclude that the
declaration was false in a material respect pursuant to § 12.13(3)(a), Stats.
We hold that the filing
and falsity elements were sufficiently proven.
As to the third element
regarding Ragan's knowledge, the jury was presented with conflicting evidence
and a credibility question. Ragan
testified that although he was aware that he had been convicted of theft, he
did not know that theft was a felony.
The State presented documentation of Ragan’s theft conviction which
included the word “felonious.” The State also raised doubts as to whether one
could be on probation for three years, as Ragan was, without knowing the level
of the conviction.
The verdict reflects
that the jury chose to disbelieve Ragan's theory of defense. We respect that finding because the evidence
supports it. We affirm the judgment of
conviction and the order denying postconviction relief.
By the Court.—Judgment
and order affirmed.
Not recommended for
publication in the official reports.
[1] We acknowledge that the standard of review stated in State v. Copening, 100 Wis.2d 700, 303 N.W.2d 821 (1981), appears contrary to that expressed in State v. Mink, 146 Wis.2d 1, 429 N.W.2d 99 (Ct. App. 1988). Mink states that “manifest necessity is a mixed question of fact and law and when the facts are not in dispute, only a question of law remains.” Id. at 10-11, 429 N.W.2d at 103. Copening, however, is a statement by our supreme court, whereas Mink is a statement by the court of appeals. In such a setting, we properly follow the supreme court's declaration.
[2] The trial court's ruling in favor of the State's motion in limine, however, was not a ringing endorsement of the State's argument. Although granting the motion, the court stated, “I, frankly, have my doubts that there would be prejudice in mentioning ¼ that he was elected but he wasn’t seated.”
[3] We observe
that the trial court's failure to use the phrase “manifest necessity” does not
mean that such a condition did not exist or that a retrial violated the
defendant's double jeopardy rights. See
State v. Mendoza, 101 Wis.2d 654, 659, 305 N.W.2d 166, 169 (Ct.
App. 1981) (quoting Arizona v. Washington, 434 U.S. 497, 517
(1978)).
[4] We do so mindful of the supreme court's caution in Copening, 100 Wis.2d at 710, 303 N.W.2d at 827, that a trial court's discretionary mistrial ruling must scrupulously protect the defendant's right to have the matter resolved by the initial jury chosen to hear the matter.
[5] We also observe that Ragan's trial counsel testified at the Machner hearing that, based on his research, he concluded (as have we) that a double jeopardy challenge would not have prevailed.
[6] Section 939.43(1), Stats., provides: “An honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime.”
[7] Although trial counsel did not formally raise this defense via a jury instruction, we do note that Ragan's theory of defense—that he did not know that his prior conviction was for a felony—prominently put this question before the jury.
[8] Wisconsin
citizens recently voted to amend art. XIII, § 3. The amendment removes the “infamous crime” language from the
constitution. The question approved by
the voters stated:
Eligibility of convicted persons for office. Shall section 3 of article XIII of the constitution be amended to prohibit a person from holding public office or from appearing on a ballot for state or local office if the person has been convicted of a misdemeanor involving a violation of public trust or a felony and the person has not been pardoned for the conviction?
[9] Counsel did challenge the complaint on the basis of the theory of defense asserted at trial: that Ragan did not know that he had been convicted of a felony. The trial court rejected this challenge.
[10] The supreme
court's opinion in Lyndon Station covers twenty pages. The constitutional discussion, however, is
limited to the final six-line paragraph of the opinion. It reads:
Although we do not reach the question of whether
Jessen was subject to removal from his position as police chief under the
provisions of Wis. Const. art. XIII, sec. 3, we disavow the appellate court's
language and ruling that all felonies constitute “infamous crimes”
within the parameters of this constitutional provision.
Law Enforcement Standards Bd. v. Village of Lyndon Station, 101 Wis.2d 472, 497, 305 N.W.2d 89, 101 (1981).
For a variety of reasons, we have seriously
considered whether this language truly overruled Becker and might
be dicta. First, the supreme court had
already affirmed the court of appeals decision on other grounds and expressly
stated that it was not deciding the constitutional issue. Second, the supreme court did not expressly
say that it was overruling Becker or withdrawing the language of
that case. Third, although the supreme
court “disavowed” the court of appeals language, that language was based
squarely on the supreme court's prior decision in Becker. As noted, the supreme court never addressed
the Becker decision.
Fourth, the supreme court decision engaged in no analysis as to why the Becker
holding was wrong.
Despite this terse and obscure treatment of the issue, we choose to read the supreme court's opinion as overruling Becker.
[11] The State
cites to this court's language in State v. McMahon, 186 Wis.2d
68, 84, 519 N.W.2d 621, 628 (Ct. App. 1994), arguing that trial counsel cannot
be labeled ineffective for failing to pursue an unresolved area of the criminal
law. However, the State fails to note
our additional statement just a few lines later: “We think ineffective assistance of counsel cases should be
limited to situations where the law or duty is clear such that reasonable
counsel should know enough to raise the issue.” Id. at 85, 519 N.W.2d at 628.
Thus, in some situations, a failure to raise an unresolved issue can constitute ineffective assistance of counsel. Here, despite the unresolved nature of the question, the supreme court's language in Lyndon Station is a signal, perhaps even an invitation, to the criminal defense bar to litigate the question. In light of Lyndon Station, the question in this case was whether the complaint even stated a crime known to the law. Under those circumstances, we conclude that counsel's duty was clear under McMahon to raise the issue.
[12] Trial counsel explained at the Machner hearing that he and Ragan tactically decided to defend on the basis of Ragan's claim that he did not know the prior conviction was for a felony and that they did not want to confuse the jury with the uncertain question of whether felony theft was an infamous crime. We respect counsel's right to select a jury trial strategy from among various available options. However, this begs the question as to counsel's failure to argue that the factual allegations of the complaint or the evidence at the preliminary hearing did not support the charge.
[13] Ragan argues that these cases are inapposite because they involve conduct or offenses committed by the public officials after they were already in office. However, Symonds v. Gualano, 240 N.E.2d 467, 470 (Ill. App. Ct. 1968), succinctly answers this argument: “The determinative question is not when the conviction takes place but whether the conviction is for an infamous crime.”