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COURT OF APPEALS DECISION DATED AND FILED August 24, 2006 Cornelia G. Clark 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.
2003CF663 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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State
of Wisconsin, Plaintiff-Respondent, v. Richard
S. Dammon, Defendant-Appellant. |
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APPEAL from an order of the circuit court for La Crosse County: Dale T. Pasell, Judge. Affirmed.
Before Lundsten, P.J., Vergeront and Deininger, JJ.
¶1 PER CURIAM. Richard Dammon appeals an order denying his motion for postconviction relief filed under Wis. Stat. § 974.06 (2003-04).[1] We affirm.
¶2 Dammon was convicted of one count of repeated first-degree sexual assault of the same child. The circuit court denied his postconviction motion without a hearing. A defendant is entitled to a hearing on the motion unless the motion and the files and records of the action conclusively show that the person is entitled to no relief. Wis. Stat. § 974.06(3).
¶3 Dammon first argues that the prosecutor
breached the plea agreement by making a comment at sentencing to the effect
that the negotiated joint recommendation may “seem too lenient.” Because Dammon did not object to the comment
at the time, we assess the issue in the context of ineffective assistance of
counsel. See State v.
Howard, 2001 WI App 137, ¶12, 246 Wis. 2d 475, 630 N.W.2d 244. The first step in that analysis is whether
Dammon’s counsel deficiently failed to object to the prosecutor’s comment. This question, in turn, begins with
determining whether the prosecutor’s comment was a breach, such that Dammon’s
counsel should have objected. See
id. We are satisfied that the record shows there was
no breach of the agreement. The
prosecutor’s comments, read as a whole, show that the prosecutor was
acknowledging what the court might have perceived as undue leniency in the
recommendation. The readily apparent
purpose was to persuade the court that the recommendation was, nonetheless,
appropriate. It is also clear from the
court’s comments before imposing sentence that the court understood this was
the purpose for the prosecutor’s discussion.
¶4 Dammon
next argues that his trial counsel was ineffective regarding alleged
inaccuracies in the presentence investigation (PSI) report. To establish ineffective assistance of
counsel a defendant must show that counsel’s performance was deficient and that
such performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Dammon’s argument appears to be that certain
statements by his then-wife, recounted in the PSI, about the acts constituting
the crime for which Dammon was convicted were untrue. Among other assertions, Dammon asserts that his then-wife had
ulterior motives and that the victim recanted.
Dammon appears to be arguing that the “inaccuracy” in the PSI is the
assertion that he committed the crime for which he was sentenced. The problem with this argument is that
Dammon pled guilty to the charge and the court, therefore, was entitled to
assume that he committed the crime. If
Dammon wanted to dispute whether he committed the crime, he should have gone to
trial. We see no cognizable claim of
ineffective assistance in this argument.
¶5 Finally,
Dammon argues that his counsel was ineffective by “allowing” Dammon to accept,
as part of the plea bargain, the reading in of certain uncharged conduct with a
foster child. There is no law that
prevents the reading in of uncharged conduct.
The decision to accept that plea bargain was Dammon’s, not his
attorney’s. Dammon does not allege that
his plea was unknowingly entered and does not otherwise present a basis for
granting plea withdrawal.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.