COURT OF APPEALS DECISION DATED AND FILED April 21, 2015 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No. 2009CF5594 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Wisconsin, Plaintiff-Respondent, v. Scott R. Shallcross, Defendant-Appellant. |
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APPEAL from orders of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before Kessler and Brennan, JJ., and Thomas Cane, Reserve Judge.
¶1 PER CURIAM. Scott R. Shallcross, pro se,
appeals an order denying him relief under Wis.
Stat. § 974.06 (2013-14).[1] He also appeals the order denying
reconsideration. Shallcross seeks to
withdraw his guilty pleas to two counts of homicide by intoxicated use of a
motor vehicle. He claims he received
ineffective assistance from his trial lawyer and from the lawyer who
represented him in his direct postconviction challenge under Wis. Stat. § 974.02 and Wis. Stat. Rule 809.30. We reject his contentions and affirm.
BACKGROUND
¶2 A
Honda Civic struck a pickup truck in Milwaukee, Wisconsin, at approximately 12:28
a.m. on November 27, 2009. According to
witnesses, the Honda was traveling at speeds of 85-100 miles per hour just
before the collision. The pickup truck
caught fire, and the two people inside the truck died at the scene. First responders found two people alive in
the Honda: Shallcross, who was in the
back seat, and D.G., who was seatbelted into the front passenger seat with his
knees trapped under the dashboard. No
one was in the driver’s seat. Firefighters
cut the roof off the Honda to reach Shallcross and D.G., and a medical unit
brought them to the hospital.
¶3 Police
interviewed D.G. in the trauma center soon after he arrived at the
hospital. He said that he and Shallcross
spent the evening talking and drinking in a tavern. According to a police report, D.G. added: “[w]hen they were getting ready to leave, a
person they were talking with told them that [D.G.] []and his friend were too
drunk to drive and he would drive them home.”
D.G. told police that he could not identify the person who made this
offer.
¶4 The
police next approached Shallcross in the trauma center at 3:03 a.m. on November
27, 2009, and requested a blood sample for testing purposes. An officer documented Shallcross’s consent to
a blood draw on a hospital trauma center form that includes the officer’s “attestation
of arrest.” The form, titled Consent for
Legal Blood Draw, shows Shallcross gave verbal consent to the blood draw and
two nurses signed as witnesses to his consent.
Medical personnel then drew Shallcross’s blood. The blood test results revealed that
Shallcross had a blood alcohol content of .158.
¶5 Meanwhile,
at the accident scene, a witness told investigators that after sheriff’s squads
arrived, the witness “saw someone cross in front of the suspect vehicle and
then head westbound.” Police
investigated the possibility that someone other than Shallcross or D.G. was
driving the Honda at the time of the crash.
The police were unable to find such a person, however, and none of the
area hospitals that officers contacted had treated any potential suspects.
¶6 Police
re-interviewed D.G. in the evening of November 27, 2009. In this interview, he told police that
“Shallcross wanted [D.G.] to say that there was someone else, a third person,
in the car that was driving at the time of the accident.” D.G. said that, in fact, Shallcross was
driving at the time of the accident and “immediately after the accident [D.G.]
observed Shallcross crawling into the back seat from the driver’s seat.”
¶7 Police
interviewed Shallcross in the hospital on November 29, 2009, and he admitted he
was driving the Honda at the time of the accident. In a supplemental interview the next day, he
provided additional details, including a description of the amount of alcohol
he drank before the accident and an explanation of how he got into the back
seat of the car after the crash.
¶8 Pursuant
to a plea bargain, Shallcross pled guilty to two counts of homicide by
intoxicated use of a motor vehicle. The
circuit court imposed two consecutive eighteen-year terms of imprisonment, each
bifurcated as twelve years of initial confinement and six years of extended
supervision.
¶9 Shallcross
retained new counsel after sentencing and filed a postconviction motion
alleging his trial lawyer was ineffective for:
(1) failing to take certain investigative steps; (2) conducting other investigation
in an untimely fashion; and (3) failing to seek suppression of his inculpatory
statements. The circuit court denied the
motion, and we affirmed. See State v. Shallcross, No.
2011AP2432-CR, unpublished slip op. (WI App Oct. 23, 2012) (Shallcross
I).
¶10 Proceeding
pro se, Shallcross next filed the
postconviction motion underlying the instant appeal. He again alleged his trial counsel was
ineffective, and he contended his postconviction counsel was ineffective in
turn for inadequately challenging trial counsel’s effectiveness. The circuit court rejected Shallcross’s
claims without a hearing, and this appeal followed.
DISCUSSION
¶11 “We
need finality in our litigation.” State
v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). A defendant therefore is barred from pursuing
claims under Wis. Stat. § 974.06
that could have been raised in an earlier postconviction motion or direct
appeal absent a sufficient reason for not raising the claims previously. Escalona-Naranjo, 185 Wis. 2d at
181-82. Postconviction counsel’s
ineffectiveness may, in some circumstances, constitute a sufficient reason for
an additional postconviction motion. See State ex rel. Rothering v. McCaughtry,
205 Wis. 2d 675, 682, 556 N.W.2d 136 (Ct. App. 1996). A convicted defendant, however, may not
merely allege that postconviction counsel was ineffective but must “make the
case” of postconviction counsel’s ineffectiveness. See State
v. Balliette, 2011 WI 79, ¶67, 336 Wis. 2d 358, 805 N.W.2d
334.
¶12 A familiar two-prong test governs claims
that counsel was constitutionally ineffective. The defendant must show both that counsel’s
performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). We may address either
deficient performance or prejudice first, and if the defendant fails to satisfy
one prong, we need not address the other.
See id. at 697.
¶13 To
prove deficiency, a defendant must show that trial counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id.
at 687. To prove prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Therefore, when, as here, a defendant alleges
that postconviction counsel was ineffective by failing to conduct an adequate
challenge to the effectiveness of trial counsel, the defendant cannot prevail
without establishing that trial counsel was, in fact, ineffective. See State
v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369.
¶14 A
defendant alleging ineffective assistance of counsel in a postconviction motion
must carry an additional burden: the
motion must be sufficiently detailed and specific as to satisfy “the five ‘w’s
and one ‘h’ test, ‘that is, who, what, where, when, why and how.’” See Balliette,
336 Wis. 2d 358, ¶59 (citation and some punctuation omitted). Further, when the
motion is grounded on claims that postconviction counsel was ineffective in
challenging trial counsel’s effectiveness, the motion must demonstrate not only
the who, what, when, where, why, and how of trial counsel’s alleged errors, but
also must address those same questions in regard to postconviction counsel’s
alleged errors, including “why it was
deficient performance for postconviction counsel not to raise” the disputed
issues, see id., ¶65, and how the
alleged deficiency resulted in actual prejudice. See id., ¶70. The sufficiency of a postconviction motion is a
question of law. Id., ¶18.
¶15 Finally,
to earn a hearing on a postconviction motion, a person is required to allege
sufficient material facts that, if true, would entitle the person to relief. See id., ¶¶18, 79. If, however, “the motion does not
raise such facts, ‘or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief,’” the
circuit court may deny the motion without a hearing. See id., ¶18
(citation omitted). With
these standards of review in mind, we turn to the issues.
¶16 Shallcross first contends police unlawfully arrested him in
the hospital trauma center without a warrant and without probable cause before
his blood was drawn. See State v. Lange, 2009 WI 49, ¶19, 317
Wis. 2d 383, 766 N.W.2d 551 (“A warrantless arrest is not lawful
except when supported by probable cause.”).
Therefore, he says, the blood draw cannot be justified as a search
incident to a lawful arrest. Cf. State
v. Padley, 2014 WI App 65, ¶23 and n.6, 354 Wis. 2d 545, 849
N.W.2d 867 (explaining that the Fourth Amendment to the United States
Constitution and article I, section II of the Wisconsin Constitution, require
that searches be conducted pursuant to a warrant, subject to certain exceptions
including, inter alia, some searches
incident to a lawful arrest). In his
view, trial counsel was ineffective for failing to challenge his arrest with
the objective of suppressing his blood alcohol content, and he claims his
postconviction counsel was ineffective in turn for failing to pursue his trial
counsel’s alleged error.
¶17 We
need not and will not decide when officers arrested Shallcross or when they
first had probable cause to do so.
See State v. Berggren, 2009 WI App 82,
¶20, 320 Wis. 2d 209, 769 N.W.2d 110 (unnecessary to address
non-dispositive issues). Assuming without deciding both that the police
arrested Shallcross before the blood draw and that they lacked probable cause for
arrest at that time, we agree with the State that Shallcross does not show any
prejudice from counsel’s alleged deficiency in foregoing a motion to challenge the
arrest. Regardless of Shallcross’s
custodial status, the officers could take and test his blood pursuant to the
implied consent statute, Wis. Stat. § 343.305.
¶18 As
Shallcross emphasizes, the hospital trauma unit’s Consent for Legal Blood Draw
form reflects that he consented to the blood draw “in accordance with [§] 343.305
of the Wisconsin Statutes.” At the time
of the accident in this case, the statute provided, in pertinent part:
If a person is the operator of a vehicle that is involved in an accident that causes the death of or great bodily harm to any person, and a law enforcement officer detects any presence of alcohol, a controlled substance, a controlled substance analog or other drug, or a combination thereof, the law enforcement officer may request the operator to provide one or more samples of his or her breath, blood, or urine for the purpose [of testing].... If a person refuses to take a test under this paragraph, he or she may be arrested under [another statutory subsection].
See Wis.
Stat. § 343.305(3)(ar)
(2007-08).[2] The statute thus permitted police to ask the
operator of a vehicle for a blood sample if the person was involved in a fatal
accident and the police detected any presence of alcohol. The subject’s custodial status did not
dictate the applicability of § 343.305(3)(ar), which neither required nor
forbade an arrest preceding the request for a blood sample.
¶19 Shallcross
responds that the blood draw in this case did not satisfy the terms of Wis. Stat. § 343.305(3)(ar). He contends that the statute permits the police to request a blood sample
only from a person who “emits the presence of
alcohol.” Relying on this argument, he
asserts that the police reports do not show he smelled of alcohol after
the accident, and therefore, he says, he did not fit within the requirements of
the statute. Shallcross,
however, erroneously describes the statutory language. It provides that law enforcement officers may
request a blood sample when police “detect[] any presence of alcohol,” not when
a subject “emits” something. The
police detected alcohol here when D.G. told them in the trauma center that he
and Shallcross spent the evening drinking in a tavern where another patron
advised D.G. that “he []and his friend were too drunk to drive.” Moreover, the hospital admission notes, made at
1:36 a.m. on November 27, 2009, show that emergency medical personnel and
Shallcross himself reported Shallcross had consumed alcohol that evening.[3] Thus, at a suppression hearing, the officers
could have demonstrated that they detected the presence of alcohol before
requesting a blood draw.
¶20 Shallcross
next asserts the blood draw did not satisfy the terms of Wis. Stat. § 343.305(3)(ar)
because, at the time of the procedure, police had not established he was the
operator of a car involved in an accident.
He is wrong.
¶21 Wisconsin Stat. § 343.305(3)(ar)
permitted a law enforcement officer to ask for a blood sample from a motor
vehicle operator who was involved in a fatal accident, but the statute did not
prescribe a standard governing the officer’s action. Effective March 29, 2010, however, the
legislature renumbered and amended § 343.305(3)(ar) and created Wis. Stat. §§ 343.305(3)(ar)1.-2. See
2009 Wis. Act 163; Wis. Stat. § 990.11. The amended statute provides that, after a
fatal traffic accident, law enforcement officers may request a blood sample
from a person if they have “reason to believe that the person violated any
state or local traffic law.” See Wis.
Stat. § 343.305(3)(ar)2.
Although the legislature amended § 343.305(3)(ar) after the
accident in this case, a statutory revision may be accorded weight in
interpreting earlier legislative enactments.
See McGarrity v. Welch Plumbing Co.,
104 Wis. 2d 414, 427, 312 N.W.2d 37 (1981); see also 2B Norman J. Singer
& J.D. Shambie Singer, Sutherland
Statutes and Statutory Construction § 49:10 at 129 (7th ed. 2007)
(“Where a legislature amends a former statute, or clarifies a doubtful meaning
by subsequent legislation, such amendment or subsequent legislation is strong
evidence of the legislative intent behind the first statute.”). In this case, the revised statute, by it
terms, illuminates the standard for requesting a blood draw after a fatal
accident. Further, the amendment is
consistent with case law requiring officers to act reasonably in applying
§ 343.305. See State v. Piddington,
2001 WI 24, ¶¶28, 33, 241 Wis. 2d 754, 623 N.W.2d 528. Accordingly, we are satisfied
§ 345.305(3)(ar) required police to have no more than “reason to believe”
that a person was an operator of a vehicle before requesting a blood sample
following a fatal accident.
¶22 Whether
police had “reason to believe” that Shallcross was driving at the time of the
accident is a question of law. See
Padley, 354 Wis. 2d 545, ¶¶17, 81.
The standard is low, requiring only that the officer have “minimal
suspicion.” See id., ¶77. The record here plainly supports a minimal
suspicion that Shallcross was driving at the time of the accident; indeed, the
record does not permit a meritorious argument to the contrary. Following the crash, D.G. was wearing a seat
belt and pinned in the passenger seat of the Honda. Shallcross was the only other person found in
the car. Rescue workers had to cut the
car apart to extract its occupants.
Assuming, as Shallcross does, that these facts permit the possibility
that an unidentified third person drove the car at the time of the accident,
then somehow got out unaided and disappeared, the facts nonetheless are more
than sufficient to support a “minimal suspicion” that Shallcross was the
driver. Police need not rule out alternative
theories favoring innocence in order to harbor a minimal suspicion and may
reach one conclusion even though another conclusion is also possible. See
State
v. Nieves, 2007 WI App 189, ¶14, 304 Wis. 2d 182, 738 N.W.2d
125.
¶23 Finally,
Shallcross asserts he did not consent to the blood draw. The record shows, however, that he did
consent. Two witnesses, both medical
personnel, signed the trauma center’s Consent for Legal Blood Draw form to
attest that he gave his consent. Accordingly,
the police could conduct the search. A
search conducted pursuant to consent that is freely and voluntarily given
constitutes an exception to the warrant requirement of the Fourth Amendment. See State v. Phillips, 218 Wis. 2d
180, 196, 577 N.W.2d 794 (1998).
¶24 Shallcross
nonetheless argues he “couldn’t voluntarily consent because he was unlawfully
arrested.” Assuming without deciding—as
we do throughout this opinion—that Shallcross was unlawfully arrested before
the blood draw, nonetheless, a Fourth Amendment violation does not itself
vitiate consent. Id. at 204-05. To the contrary, a multi-factor analysis governs
whether consent is valid. See id.
at 205. The factors include the
temporal relationship between the police conduct and the search, the presence
of intervening circumstances, and the purpose and flagrancy of police misconduct. See
id. An examination of these factors must take
into account numerous additional considerations. See id. at 206-13. Shallcross has not conducted this fact-intensive
analysis.
¶25 A
defendant cannot obtain postconviction relief based on conclusory
assertions. See State v. Allen, 2004 WI 106, ¶15, 274 Wis. 2d 568, 682
N.W.2d 433. In this case, Shallcross did
not dispute in his circuit court submissions that he gave consent in fact to
the blood draw, nor did he examine the totality of the factors, as required by Phillips,
to show they invalidated the consent he gave.[4] Shallcross’s conclusory statements in his
appellate brief asserting that his consent was invalid are insufficient to meet
his burden to produce “material facts” in support of his claim. See
Balliette, 336
Wis. 2d 358, ¶18.
¶26 In
sum, regardless of Shallcross’s custodial status, the blood draw was lawful pursuant
to Wis. Stat. § 343.305(3)(ar)
because: (1) police detected the
presence of alcohol; (2) police had reason to believe Shallcross was operating
a vehicle involved in a fatal collision; and (3) Shallcross consented. A challenge to the lawfulness of the arrest thus
would not have led to suppression of the blood test results. Therefore, Shallcross does not demonstrate
any prejudice flowing from his trial counsel’s failure to mount such a
challenge. Absent prejudice, a convicted
person cannot demonstrate ineffective assistance of counsel. See
Strickland,
466 U.S. at 687. Because Shallcross does
not show that trial counsel was ineffective, he cannot show that postconviction
counsel was ineffective by foregoing a challenge to the effectiveness of trial
counsel on this issue. See Ziebart, 268 Wis. 2d 468, ¶15. The claim thus earns him no relief.
¶27 Shallcross
next seeks relief based on allegations that his trial counsel was ineffective
for failing to pursue suppression of his statements. In Shallcross I, he also alleged trial
counsel was ineffective for failing to pursue a suppression motion but he now offers
new legal theories he believes his trial counsel should have developed, and he
asserts postconviction counsel was ineffective for not challenging trial
counsel’s failure to present the new theories he has identified. We conclude, however, that these claims are
unavailable to Shallcross. In Shallcross
I, we rejected his claim that trial counsel was ineffective for failing
to pursue suppression of evidence because, at sentencing, his trial counsel
explained Shallcross chose to accept responsibility rather than file a suppression
motion. See id., No.
2011AP2432-CR, ¶¶15-18. As discussed in Shallcross
I, the decision to forego a suppression motion rested with Shallcross,
and his lawyer did not act deficiently by complying with Shallcross’s
wishes. See id., ¶18. Our conclusion is the law of the case and
governs subsequent litigation in this matter.
See State v. CGIP Lake Partners, 2013 WI App 122, ¶32, 351
Wis. 2d 100, 839 N.W.2d 136.
¶28 During
the postconviction proceedings underlying the instant appeal, Shallcross attempted
to dodge the law of this case by claiming his postconviction counsel’s
ineffectiveness prevented him from showing that trial counsel misrepresented
his wishes during the sentencing proceeding.
Shallcross argued that, if allowed an evidentiary hearing to pursue his
most recent postconviction claims, his trial counsel would be required to
testify and might “tell the truth. That
truth being that this was a strategy to mitigate the sentencing by arguing the
defendant want[ed] to accept responsibility in an attempt to show good
character.” The rule is well-settled,
however, that a lawyer’s rational strategic decision will not support a claim
of ineffective assistance of counsel. See State
v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App.
1996). Moreover, Shallcross was present
in the courtroom during sentencing and did not object to his lawyer’s
remarks. He may not contend that he previously
permitted his trial counsel to make false statements in an effort to obtain an
advantage but now wishes to fault his trial counsel for pursuing that
strategy. See State v. McDonald, 50 Wis. 2d 534, 538-39, 184 N.W.2d 886
(1971) (defendant who acquiesces to trial counsel’s strategic choice is bound
by that decision); see also Shawn
B.N. v. State, 173 Wis. 2d 343, 372, 497 N.W.2d 141 (Ct. App.
1992) (appellate court will not review error invited by appellant).
¶29 Shallcross
next claims his trial counsel erred by failing to allege an unreasonable delay
in charging him with a crime following his arrest. See
County
of Riverside v. McLaughlin, 500 U.S. 44 (1991). Pursuant to Riverside, the State is
required to obtain a judicial determination of probable cause within forty-eight
hours of an arrest. See State v. Koch, 175
Wis. 2d 684, 693-94, 499 N.W.2d 152 (1993). In this case, Shallcross made an initial court
appearance on December 6, 2009. He
asserts that, even assuming police arrested him on November 28, 2009, as the
State maintains, his initial appearance fell outside the timeframe Riverside
requires.[5] Shallcross concludes that his trial counsel
was ineffective for failing to seek relief for him based on this violation and
his postconviction counsel was ineffective in turn for failing to challenge
trial counsel’s inaction. We cannot
agree.
¶30 “There
is no settled law on the remedy for non-compliance with Riverside.” Koch, 175 Wis. 2d at 699. Shallcross expressly acknowledges: “there is very little jurisprudence on Riverside
issues, and the law is not clear on what the remedy or the standard is
for such a violation.”
¶31 A
defendant alleging ineffective assistance of counsel may not merely speculate
that counsel’s inaction might have prejudiced the defense by depriving the
defendant of some uncertain and undefined remedy. See State v. Provo, 2004 WI App 97,
¶15, 272 Wis. 2d 837, 681 N.W.2d 272. Rather, the defendant must demonstrate
precisely how the omitted action would have altered the outcome of the
proceeding. See id. Shallcross is unable to demonstrate
how foregoing a Riverside claim altered the outcome of the proceeding
here. He therefore cannot show that his
lawyers were ineffective for failing to pursue the claim. Ineffective assistance of counsel claims are
limited to circumstances where the law is clear. See State v. Maloney, 2005 WI 74, ¶29,
281 Wis. 2d 595, 698 N.W.2d 583.
¶32 Shallcross
next asserts he is entitled to a postconviction hearing on his claims and
appointed counsel to pursue them. A
hearing is unnecessary, however, because the record conclusively shows that
Shallcross is not entitled to relief. See Balliette, 336 Wis. 2d 358,
¶18. Moreover, Shallcross misunderstands
the law he cites in claiming he has a statutory right to appointed counsel for
pursuit of a motion under Wis. Stat. § 974.06. He has no such right. See
State
ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 649, 579 N.W.2d 698 (1998)
(appointment of counsel is discretionary for proceedings under § 974.06).
¶33 Finally,
Shallcross alleges bias on the part of the circuit court that presided over the
Wis. Stat. § 974.06 motion
underlying this appeal. As he
acknowledges, he raises this claim for the first time in this court. Accordingly, we will not address it.[6] See
State
v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727
(arguments raised for the first time on appeal generally deemed
forfeited). For
all of these reasons, we affirm.
By
the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
[2] Wisconsin Stat. § 343.305(3)(ar) no longer exists. Effective March 29, 2010, that provision was amended and replaced with Wis. Stat. §§ 343.305(3)(ar)1. and 343.305(3)(ar)2. See 2009 Wis. Act 163; Wis. Stat. § 990.11. All further references to § 343.305(3)(ar) are to the 2007-08 version.
[3] Although Shallcross asserts “no one detected alcohol on him,” the hospital admission notes reflect information “provided by the patient and the EMS personnel” including: “last meal/drink: midnight ...+etoh this evening.” “Etoh” is an abbreviation for alcohol, used in medical records to denote consumption. See Thomas Lathrop Stedman, Stedman’s Medical Abbreviations, Acronyms and Symbols 307 (5th ed. 2013).
[4] In the context of a criminal prosecution, the State has the burden to show consent where the evidence is allegedly seized following a Fourth Amendment violation. See State v. Phillips, 218 Wis. 2d 180, 204, 577 N.W.2d 794 (1998). In the context of a postconviction motion alleging ineffective assistance of counsel, however, the offender has the burden to show prejudice as a consequence of counsel’s failure to pursue an issue. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
[5] The circuit court found, based on a police report, that officers arrested Shallcross on November 28, 2009, one day after the blood draw. We do not review the circuit court’s finding because the timing of Shallcross’s arrest has no impact on our analysis of any issue presented. See State v. Berggren, 2009 WI App 82, ¶20, 320 Wis. 2d 209, 769 N.W.2d 110.
[6] In the reply brief, Shallcross highlights his complaint that the circuit court erroneously found he “smelled of alcohol” at the time of the blood draw. He asserts the record contains no evidence that he smelled of alcohol and asks us to review the circuit court’s finding for an erroneous exercise of discretion. Because the circuit court’s finding on this point is irrelevant to our resolution of the appeal, we do not address the matter. See Berggren, 320 Wis. 2d 209, ¶20.