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COURT OF
APPEALS DECISION DATED AND
RELEASED August
15, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-3271-CR
No. 96-0638-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
TOM
SWEENEY,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Dane County: MARK A. FRANKEL, Judge. Affirmed.
EICH,
C.J.[1] Tom Sweeney appeals from a judgment
convicting him of misdemeanor disorderly conduct, and from an order denying his
motion for postconviction relief. He
argues for reversal of the conviction on grounds that (a) his trial counsel was
ineffective and, alternatively, (b) he is entitled to a new sentencing hearing
because of the existence of a "new factor." His position is, in sum, that his trial counsel's failure to
raise his "competency" prior to trial, and to pursue a "mental
health defense" during trial, constituted ineffective assistance. He also argues that a later report from a
psychiatrist who examined him in connection with another case, and which
suggests that he is suffering from a mental illness, is a new factor warranting
resentencing. We reject his arguments
and affirm the judgment and order.
The
underlying facts are not in dispute.
After engaging in loud and abusive behavior at a state office in
Madison, Sweeney was charged with disorderly conduct. Initially, the district attorney offered to amend the charge,
lowering it from a misdemeanor to an ordinance violation in exchange for
Sweeney's plea of guilty. By the time
Sweeney accepted the offer, however, the trial date was too near for the court
to accept the plea under its rules,[2]
and his case went to trial on the misdemeanor charge.
The
descriptions of Sweeney's behavior by the State's witnesses varied. Some described him as being simply "a
little loud" but not "yelling," while others said he was
"screaming" and "out of control." On one occasion during the trial, the court admonished Sweeney to
refrain from "gesturing ... to the jury in response to
testimony." At the close of the
evidence, Sweeney made a rambling statement to the court attempting to explain
his conduct at the state office. Sweeney
asserted that he went there as a citizen seeking "redress" from the
agency, which he said had maintained an incorrect file on him. A colloquy with the court ensued, during
which the court remarked that because Sweeney's counsel was making "all of
the arguments available to him," it "ma[de] no sense" for him to
argue personally to the court with only a "limited understanding of the
issues."
After
the jury verdict was received, the court asked whether Sweeney was prepared to
proceed with sentencing. His attorney,
James Cooley, said he would prefer that the matter be set over so that he could
"discuss ... with Mr. Sweeney in terms of sentencing and in terms of, you
know, any type of counseling or medical treatment that he is in right
now." The court recessed for
approximately twenty minutes to permit Cooley to discuss "sentencing options"
with Sweeney.
When
the court reconvened, the district attorney was asked for his sentencing
recommendation. He recommended that the
court withhold Sweeney's sentence and place him on probation for two years,
with counseling as a condition. Cooley
responded that he was "unclear as to what options Mr. Sweeney would be
wanting." He said Sweeney wanted
the court to know that he was undergoing physical therapy for a leg injury
which would "conflict if he were to be immediately sentenced." The court indicated that would not be a
problem, and Cooley responded: "What is a concern to me is that I want to
know what my client wants to do."
The
sentencing proceeded. The district
attorney argued in support of his recommendation, and when it was Cooley's turn
to argue to the court, he stated: "I guess ... I'd like to ask you to
recognize that Mr. Sweeney has somewhat appeared to have mental problems. I would ask that you be understanding of his
behavior in that context." He then
proceeded to argue for leniency.
Finally,
Sweeney made a lengthy (and rambling) statement recounting his military service
and attempting to justify his behavior at the state office. After questioning Sweeney about his
background, the court accepted the district attorney's recommendation in part,
withholding sentence in favor of two years' probation, conditioned on his
receiving counseling, and adding a further condition of ten days in the county
jail, based largely on Sweeney's prior disorderly conduct record and a
perceived need for deterring similar conduct in the future.
Sweeney
filed a motion asking that his conviction be vacated on grounds that Cooley was
ineffective in failing to inform him of the court's "Thursday Rule"
which, as we noted above, precluded acceptance of a reduced-charge plea at any
time later than the Thursday prior to the scheduled trial date. He claimed that, as a result of this
failure, he was "forced to go to trial" and was convicted. He also argued that he should be
resentenced.
Cooley
testified at the hearing, held on July 5, 1995, as to the "Thursday
Rule" ineffective assistance claim.
Sweeney's postconviction counsel also asked him about the
sentencing--apparently in support of a claim that Sweeney should be resentenced
because of Cooley's lack of preparation at the original hearing. Cooley testified that he was unprepared for
sentencing immediately after the verdict because he "felt there was a
question as to ... Sweeney's mental health at that time." He said:
I would have
developed [sic] further into whether or not he had been seen by mental health
professionals and -- I mean it is hard to speculate at this point. That is where I would have begun, and then I
would have followed through on that.
Cooley testified that Sweeney's "general
behavior" was sometimes "difficult to understand," and this led
him to feel that Sweeney was "paranoid and delusional."
The
trial court denied Sweeney's retrial and resentencing requests.
Several
months later, when Sweeney was charged with criminal damage to property in
connection with a separate incident, his competency to stand trial was
evaluated by a psychiatrist, Dr. John Marshall, who concluded that he had a
mental illness that rendered him incompetent in that he neither understood the
nature of the proceedings nor was able to assist in his defense. Sweeney then filed a second postconviction
motion in this case, asking for a new trial on grounds that Cooley was ineffective
for failing to raise his competency prior to trial. He also sought resentencing based on the "new factor"
of his purported incompetency. The
trial court denied the motions and Sweeney appeals. Other facts will be discussed in the body of the opinion.
I. Ineffective
Assistance of Counsel
For
a defendant to prevail on a claim of ineffective assistance of counsel, he or
she must establish that counsel's actions constituted deficient performance, and
that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is not constitutionally
ineffective unless both prongs of the test are met. State v. Guck, 170 Wis.2d 661, 669, 490 N.W.2d 34,
37 (Ct. App. 1992), aff'd, 176 Wis.2d 845, 500 N.W.2d 910 (1993). Thus, we may dispose of an ineffective
assistance of counsel claim when the defendant fails to satisfy either
element. State v. Johnson,
153 Wis.2d 121, 128, 449 N.W.2d 845, 848 (1990).
On
appeal, the question is one of both fact and law. Strickland, 466 U.S. at 698. The trial court's findings as to what the
attorney did, what happened at trial, and the grounds for the challenged
conduct are factual and will be upheld unless they are clearly erroneous. State v. Weber, 174 Wis.2d 98,
111, 496 N.W.2d 762, 768 (Ct. App. 1993).
However, whether counsel's actions were deficient and, if so, whether
they prejudiced the defense are questions of law the reviewing court determines
independently. State v. Hubanks,
173 Wis.2d 1, 25, 496 N.W.2d 96, 104-05 (Ct. App. 1992), cert. denied,
510 U.S. 830 (1993).
In
order to prevail on a claim of ineffective assistance, a defendant must show
that his or her counsel
"made errors so serious that counsel was not
functioning as the `counsel' guaranteed ... by the Sixth Amendment."
Review of counsel's performance gives great deference to the attorney and every
effort is made to avoid determinations of ineffectiveness based on
hindsight.... [T]he case is reviewed from counsel's perspective at the time of
trial, and the burden is ... on the defendant to overcome a strong presumption
that counsel acted reasonably within professional norms.
Johnson, 153 Wis.2d at 127, 449 N.W.2d at 847-48 (quoted source omitted)
(footnote omitted). "[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." State v. Pitsch, 124 Wis.2d
628, 637, 369 N.W.2d 711, 716 (1985) (quoting Strickland, 466
U.S. at 690). "A fair assessment
of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at
the time." Strickland,
466 U.S. at 689.
As
noted above, "Even if deficient performance is found, judgment will not be
reversed unless the defendant proves that the deficiency prejudiced his
defense. `This requires showing that
counsel's errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.'" Johnson,
153 Wis.2d at 127, 449 N.W.2d 848 (quoted source omitted). The defendant must show the particular
errors of counsel actually had an adverse effect on the defense, for not every
error that conceivably could have influenced the outcome undermines the
reliability of the result in the proceeding.
There must be "`a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.'" Id. at 129, 449 N.W.2d at 848
(quoted source omitted).
Applying
those considerations to the facts of this case, we do not believe Cooley's
performance was defective--and we reject his claim that State v. Johnson,
133 Wis.2d 207, 395 N.W.2d 176 (1986), requires reversal. Johnson held that
where defense counsel has a reason to doubt the
competency of his client to stand trial, he must raise the issue with the trial
court [and] failure to raise the issue of competency makes the counsel's
representation "[fall] below an objective standard of reasonableness"
... and, hence, was deficient.
Id. at 220, 395 N.W.2d at 182 (alteration in original).
Not
every doubt, of course, is a "reasonable" doubt within the meaning of
Johnson. State v.
Weber, 146 Wis.2d 817, 828, 433 N.W.2d 583, 587 (Ct. App. 1988). In Johnson, prior to trial,
defense counsel had letters from two doctors who had evaluated the defendant's
competency, both indicating that they had "serious concerns" and
"serious doubts" as to the defendant's competency to stand trial; the
court relied on those letters as "creat[ing] a reason to doubt Johnson's
competency to stand trial." Johnson,
133 Wis.2d at 220, 395 N.W.2d at 183.
Here, of course, the only evidence relating to Sweeney's status at the
time of his trial and sentencing is comprised of Cooley's observations and
Sweeney's own actions and statements; there was no medical or other evidence in
existence at that time, as there was in Johnson.
In
a later case, State v. Weber, we held that evidence comprising
counsel's statement that he had "some question" as to his client's
competency and the client's rather bizarre actions in court, including a
statement that he was "hear[ing] several different voices all the
time," was insufficient to establish "reason to doubt [the
defendant's] competency." Weber,
146 Wis.2d at 824, 825-26, 433 N.W.2d at 586.
In so ruling, we noted that: (1) "an attorney's statement that he
questions his client's competence is not a controlling factor for initiating
competency proceedings"; and (2) the trial court, having observed the
client's demeanor in the courtroom, did not consider that conduct as indicative
of incompetency. Id. at
826, 433 N.W.2d at 586. With respect to
the latter point, the court stated that "[a]ssessment of a witness'
demeanor is peculiarly within the province of the trial court, which, unlike
the appellate tribunal, actually sees and hears the witnesses," and then
quoted as follows from Maggio v. Fulford, 462 U.S. 111, 118
(1983):
Face to face with
living witnesses the original trier of the facts holds a position of advantage
from which appellate judges are excluded.
In doubtful cases the exercise of his power of observation often proves
the most accurate method of ascertaining the truth.... How can we say the judge is wrong? We never saw the witnesses.
Id. at 826, 433 N.W.2d at 586-87.
In
deciding Sweeney's postverdict motions, the trial court (the same court
presiding at his trial), characterized Cooley's testimony--that he "felt
there was a question as to Mr. Sweeney's mental health," and that it
"seemed to [him] that Mr. Sweeney was rather paranoid and
delusional"--as inadequate to "paint[] a picture of a defendant who
lacked a substantial ... capacity to assist in his own defense." The trial court, having observed Sweeney
both prior to, during and after the proceedings, reasoned as follows in
concluding that Cooley was not ineffective: (1) the post-sentencing report of
Dr. Marshall contained no references as to what effect, if any, Sweeney's
later-diagnosed "mental illness" might have had on his competency at
the time of the plea; (2) Cooley's testimony as to his "feelings"
about Sweeney's mental health was, as just indicated, insufficient on the
point--especially in light of Cooley's other testimony discussing in detail how
Sweeney "consulted with him frequently and enthusiastically," and how
"they arrived at a mutually agreeable and rational trial strategy which
squared with the facts of the State's case...;" and (3) while
"[Sweeney]'s trial behavior appears ... to have been somewhat disjointed
or odd, there's no showing that meaningful assistance from [Sweeney] was
lacking or [that his condition or demeanor] in any manner actually impacted on the
presentation of the defense."
We
agree with the trial court's statement that ineffective-assistance-of-counsel
cases often become exercises in hindsight or, in the trial court's words,
"Monday-morning quarterbacking."
"In considering alleged incompetency of counsel," however,
"one should not by hindsight reconstruct the ideal defense. The test of effectiveness is much broader
and an accused is not entitled to the ideal, perfect defense or the best
defense but only to one which under all the facts gives him reasonably
effective representation." State
v. Harper, 57 Wis.2d 543, 556-57, 205 N.W.2d 1, 9 (1973).
Sweeney
has not persuaded us that Cooley's representation constituted a denial of his
right to counsel with respect to either raising the issue of his competency at
the plea hearing, or considering a "mental health" defense
(presumably a "not guilty by reason of mental disease or defect"
plea) to the charge.
II.
Resentencing
Sweeney claims that his
mental illness, as discussed in Dr. Marshall's after-the-fact report in the
other case, constitutes a "new factor" which entitles him to
resentencing. Before resentencing will
be ordered on such a motion, the defendant must show the existence of a
"fact or set of facts highly relevant to the imposition of sentence, not
known to the trial court at the time of original sentencing, either because it
was not then in existence or because, even though it was then in existence, it
was unknowingly overlooked by all of the parties." State v. Prince, 147 Wis.2d
134, 136, 432 N.W.2d 646, 647 (Ct. App. 1988) (citation omitted). And if such a new factor is shown to exist,
its existence must "frustrate[] the purpose of the original
sentencing"--it must "strike[] at the very purpose of the sentence
selected by the trial court"-- in order for relief to be granted. State v. Michels, 150 Wis.2d
94, 97, 99, 441 N.W.2d 278, 279, 280 (Ct. App. 1989). Finally, the burden of proof is on the defendant to show the
existence of such a "new factor" by clear and convincing evidence. State v. Franklin, 148 Wis.2d
1, 8-9, 434 N.W.2d 609, 611 (1989).
Sweeney
argues that the ten-day county jail commitment, established by the court as a
condition of his probation, was imposed for the purpose of deterrence, based on
his prior record, and he claims his mental problems "strike at the
heart" of what he presumes was the court's intention to "punish"
him for his behavior at the state office.
As
we discussed above, Sweeney's counsel stated to the court that because Sweeney
"has somewhat appeared to have mental problems," he was asking the
court, in sentencing him, "to be understanding of his behavior in that
context." In response, the court
questioned Sweeney at some length, asking him first if he had ever undergone
any "mental health or psychological treatment." Sweeney responded that he had suffered from
"posttraumatic stress disorder" while in military service some eight
years earlier, and received "some counseling from military hospitals"
at that time. When asked whether he had
received any other mental health treatment since that time, he responded in the
negative. Then, in response to the
court's questions, Sweeney discussed his employment status, the details of his
prior disorderly conduct conviction and sentence, and his living arrangements. He was responsive to the court's questions
throughout.
In
withholding sentence and placing Sweeney on probation, the court did, in fact,
respond to counsel's request that it consider Sweeney's behavior in light of
"somewhat" of an "appearance" of "mental
problems." The court recognized
that Sweeney did indeed have a "problem" with his self-control and
ordered that, as a condition of his probation, he receive "aggression
and/or psychological counseling."
When presented with Dr. Marshall's report, the court stated:
Nothing in [the]
report suggests a need to sentence your client any differently than I did
.... You will note that as a condition
of probation your client was ordered to receive aggression and psychological
counseling....
We
agree with the State that Sweeney has not established the existence of a new
factor that would warrant resentencing under the rules and authorities
discussed above.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.