COURT OF APPEALS
DECISION
DATED AND FILED
January 8, 2008
David R. Schanker
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.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Emmanuel Rovon Hamilton,
Defendant-Appellant.
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APPEAL
from a judgment and orders of the circuit court for Milwaukee County: timothy
g. dugan, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Kessler, JJ.
¶1 PER CURIAM. Emmanuel Hamilton appeals
from the judgment of conviction entered against him and the orders denying his
motion for postconviction relief and supplemental motion for postconviction
relief. He raises many issues in his
appeal to this court. Because we
conclude that his allegations are either conclusory or waived, we affirm.
¶2 Hamilton pled guilty to two counts of armed robbery, use of
force as a party to a crime, one count of armed robbery with the threat of
force as a party to a crime, one count of armed robbery with the use of force,
one count of first degree reckless injury while armed, and one count of
first-degree reckless endangerment while armed, involving four victims in three
separate incidents. Two additional
counts were dismissed and read in. The
court sentenced him to a total of twenty-five years of initial confinement and
twenty-four years of extended supervision.
¶3 An attorney was appointed to represent Hamilton in his appeal. After appellate counsel filed a no-merit
report under Anders v. California, 386 U.S. 738 (1967), and Wis. Stat. Rule 809.32 (2005-06),
Hamilton moved this court to dismiss the appeal so that he could represent
himself. We granted the motion, the no-merit appeal was
dismissed, and Hamilton
filed a motion for postconviction relief in the circuit court. The circuit court denied the motion. Hamilton
appealed from that order, but then moved to dismiss the appeal so that he could
file a supplemental motion for postconviction relief. We dismissed the appeal, Hamilton filed a supplemental motion for
postconviction relief, and the circuit court denied that motion, too. The circuit court denied both motions without
holding a hearing. Hamilton once again appeals.
¶4 Hamilton
raises a litany of issues in this appeal.
He claims that he received ineffective assistance of trial and appellate
counsel, that the circuit court erroneously exercised its discretion and
subjected him to prejudicial error, that his plea was coerced, that the circuit
court was involved in the plea negotiations, that he has newly discovered
evidence and his trial counsel was ineffective for not finding it, that the
evidence was insufficient to convict him, that the police acted improperly, and
that the circuit court erred when it denied his supplemental motion for
postconviction relief. “An appellate
court is not a performing bear, required to dance to each and every tune played
on appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147, cert. denied, 439 U.S. 865 (1978). To the extent we do not address some of the
plethora of issues raised by the appellant, we deem them to lack sufficient
merit or importance to warrant individual attention. See id.
¶5 Hamilton
first argues that he received ineffective assistance of trial counsel, and that
the circuit court erred when it did not provide him with a Machner hearing on his
claims. We review an order of the circuit court
denying a request for an evidentiary hearing using a two-part test. State v. Bentley, 201 Wis. 2d 303, 309-10,
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.
Id. at
310 (citations omitted). If the motion
does not allege sufficient facts, however, “the circuit court has the
discretion to deny a postconviction motion without a hearing based on one of
the three factors ….” Id. at 310-11 (citing Nelson v. State, 54 Wis. 2d 489, 195
N.W.2d 629 (1972)). Under the Nelson
factors, a circuit court may refuse to hold an evidentiary hearing if a
defendant does not allege sufficient facts in his or her motion, presents only
conclusory allegations, or if the record “conclusively demonstrates that the
defendant is not entitled to relief ….”
Id.
at 309-10 (citations omitted). We review
the circuit court’s determination for the erroneous exercise of
discretion. Id. at 311.
¶6 To establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he
was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687
(1984). A reviewing court may dispose of
a claim of ineffective assistance of counsel on either ground. Id.
at 697. If this court concludes that the
defendant has failed to prove one prong, we need not address the other prong. Id. To demonstrate prejudice, the 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. A reasonable probability is one sufficient to
undermine confidence in the outcome. Id.
¶7 Hamilton argues that his trial
counsel was ineffective because he either did not read any of the “discovery
material,” or he gave false information to Hamilton.
The circuit court denied Hamilton’s first
motion for postconviction relief on this ground because Hamilton failed to “provide the court with
any inkling of what information counsel gave him or how the discovery materials
were at odds with the information provided to him by counsel.” The court concluded that Hamilton’s claim was “wholly conclusory” and
he was not entitled to a Machner hearing. Hamilton
renewed this issue in his supplemental motion and made some additional statements. The circuit court found that the statements
were still conclusory and that the court remained “entirely in the dark” about
his specific claims. We conclude that
the circuit court properly found that the statements were conclusory, and that Hamilton was not entitled
to a hearing.
¶8 Hamilton
also argued to the postconviction court that his trial counsel failed to file
pretrial motions. Again, the court found
that Hamilton’s
claims were conclusory because he did not identify the factual or legal basis
for these motions. His argument to this
court is similarly conclusory. Hamilton argues that
counsel should have filed a demand for discovery and should have created a
record. He further says that had counsel
filed such a demand, he then would have discovered the need to file a motion to
dismiss or suppress evidence. Hamilton does not explain
the specific legal issues or the specific facts that would support these
motions. Hamilton also states that counsel should have
created a record in this case, and suggests that there was some sort of
conflict of interest. Hamilton has again not identified the factual
basis for a conflict of interest. We
agree that Hamilton
is not entitled to a Machner hearing based on these
conclusory allegations.
¶9 Hamilton
also alleges that his trial counsel coerced him into accepting a plea by saying
that the evidence against him was overwhelming, and that he would receive a
lengthy sentence if he went to trial. Hamilton suggests that
these statements were misleading, but does not explain why these statements
were coercive. Further, the record shows
that the evidence against Hamilton
was overwhelming, and that his maximum prison exposure was over 200 years.
¶10 Hamilton
separately argues that alleged deficiencies in the plea colloquy show that his
plea was coerced. He asserts that he did
not understand the consequences of the plea, he was confused about the options,
and he did not understand the role of the court. Hamilton,
however, did not challenge the plea colloquy in the circuit court and,
therefore, the issue is waived. See Segall v. Hurwitz, 114 Wis. 2d 471, 489,
339 N.W.2d 333 (Ct. App. 1983).
Moreover, the record belies his assertions.
¶11 The record shows that the court conducted a very thorough plea
colloquy with Hamilton. The court asked Hamilton all of the appropriate
questions. The court explained to him
the potential term of imprisonment for each count, as well as his total
potential maximum sentence. The court also explained that it was not
bound by the plea agreement. Hamilton answered that he
understood. On the occasions when Hamilton stated he did not
understand a particular question or issue, the court carefully explained the
question or issue to him. Further, Hamilton stated that his
attorney had done a good job for him, and the record shows that his counsel
negotiated a favorable plea agreement.
¶12 While Hamilton now argues that his counsel misled him, the
statements Hamilton
attributes to his counsel about the evidence against him and his potential
prison exposure were not misleading, but true.
Hamilton
also asserts that his counsel told him he would get fifteen years in
prison. The transcript of the plea
hearing shows that the State said that as part of the plea agreement, it would
recommend a total of thirty-nine years in prison, with twenty-years of initial
confinement and nineteen years of extended supervision. Hamilton
was present when this was put on the record.
The record also shows that the circuit court asked Hamilton if he understood that the court was
not bound by the plea agreement and could impose whatever sentence it thought
was appropriate. Hamilton answered: “Yes.” The
record establishes that Hamilton knowingly,
intelligently, and voluntarily entered his plea, and Hamilton has not alleged any facts that would
support his claim that his counsel coerced him into entering his plea, or that
the plea colloquy was deficient. We
reject all of the claims Hamilton
makes on this basis.
¶13 Hamilton
also alleges that his counsel falsified his time records that he submitted to
the Office of the State Public Defender.
To the extent such an allegation may be true, this is an issue for the
State Public Defender and does not, by itself, constitute ineffective
assistance of trial counsel.
¶14 Hamilton
also argues that he received ineffective assistance of appellate counsel
because his counsel filed a no-merit report.
First, such an allegation must be raised by a petition for a writ of habeas corpus under State v. Knight, 168 Wis. 2d 509,
512-13, 484 N.W.2d 540 (1992). More
importantly, however, Hamilton
has not established that he received ineffective assistance of counsel. Even if Hamilton
could prove that counsel erred by filing a no-merit report, Hamilton cannot establish that he was
prejudiced. The no-merit appeal was
dismissed and Hamilton’s
right to a direct appeal was reinstated.
¶15 Hamilton
next argues that the circuit court erred because it did not follow the required
plea colloquy. As we have already
discussed, Hamilton
waived this issue because he did not challenge the plea colloquy in the circuit
court.
¶16 Hamilton
also complains that the circuit court erred when it made part of his sentence
consecutive. Sentencing lies within the
sound discretion of the circuit court, and a strong policy exists against
appellate interference with the discretion.
State v. Mosley, 201 Wis. 2d
36, 43, 547 N.W.2d 806 (Ct. App. 1996).
The circuit court is presumed to have acted reasonably and the defendant
has the burden to show unreasonableness from the record. Id. “The
primary considerations in imposing a sentence are the gravity and nature of the
offense (including the effect on the victim), the character of the defendant
and public safety.” State v. Carter, 208 Wis. 2d 142, 156,
560 N.W.2d 256 (1997). The discretion of
the sentencing judge must be exercised on a “rational and explainable
basis.” State v. Gallion, 2004 WI
42, ¶76, 270 Wis. 2d
535, 678 N.W.2d 197 (citation omitted).
The weight to be given the various factors is within the circuit court’s
discretion. Cunningham v. State, 76
Wis. 2d
277, 282, 251 N.W.2d 65 (1977). The
circuit court considered the appropriate factors and imposed a sentence that
was well within the maximum of more than 207 years that Hamilton faced. We reject Hamilton’s claim that the circuit court
abused its discretion when it sentenced him.
¶17 Hamilton
asserts that the circuit court erred when it labeled the allegations in his
motions for postconviction relief “conclusory.”
He also states that if the circuit court required more information, it
could have asked for it. As we have
already discussed, however, it is Hamilton’s
burden to establish that he is entitled to a hearing on his claims. Further, we agree with the circuit court’s
conclusion that these allegations were conclusory. We reject any of Hamilton’s claims that suggest the circuit
court erred when it denied his motion for postconviction relief and
supplemental motion for postconviction relief without a hearing.
¶18 Hamilton
also argues that the court became involved in the plea negotiations. Hamilton
offers nothing to support his assertion that the circuit court participated in
the negotiations, and there is nothing in the record that suggests this
occurred. We reject this argument.
¶19 Hamilton
next argues that there is newly discovered evidence. He qualifies this statement by saying that
the evidence had been available to his trial counsel, but only recently became
available to him. He argues that
statements made by his co-defendants to the police, and on which the criminal
complaint was based, contain falsehoods and inconsistencies. He also argues that the identification of him
by one of the victims was invalid and hence inadmissible. Hamilton
is, in essence, arguing that his trial attorney was ineffective for not challenging
these statements and the identification.
¶20 Hamilton’s
arguments on both points are difficult to understand and not supported by
pertinent legal authority. He asserts,
without citation to the record, that in one of the statements, his co-defendant
identified both him and another person as being the perpetrator before
ultimately identifying Hamilton. He does not explain, however, why he believes
this makes the statement invalid. He
also quotes a statement from the police report in which one of the victims
identified him. In that quoted
statement, the victim’s husband was not able to identify him, but the victim
was. He then states that the
identification was invalid, again without explaining why. We will not decide issues that are not, or
are inadequately, briefed. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633
(Ct. App. 1992). Hamilton has not supported his assertion that
his trial counsel was ineffective for not challenging the statements and
identification.
¶21 Hamilton
next argues that the evidence did not support his conviction. Hamilton
pled guilty to the crimes charged. By
doing so, he waived his right to challenge the sufficiency of the
evidence. See State v. Princess Cinema of Milwaukee, Inc.,
96 Wis. 2d
646, 651, 292 N.W.2d 807 (1980).
¶22 Hamilton
argues that there was police misconduct because he alleges that the statements
taken from his co-defendants mirror each other, and he suggests that the
statements were coerced. In his brief to
this court, he states that he is raising the issue because the statements were
used to support the criminal complaint.
He does not make a specific legal argument based on these facts. In his supplemental motion for postconviction
relief, Hamilton
argued that these facts showed that the criminal complaint was not supported by
evidence and consequently was invalid.
The circuit court found that his allegations again were conclusory, and
stated that it had reviewed the record and found nothing that would support Hamilton’s claim of insufficient
evidence to support the complaint. If Hamilton is renewing his
argument that there was insufficient evidence to support the complaint, we
agree with the circuit court’s decision.
If he is using these facts to support a different argument, we reject it
either for not being properly briefed, or being waived because he did not raise
it before the circuit court.
¶23 Hamilton’s
final argument is that the circuit court erred when it denied his motion and
supplemental motion for postconviction relief. He argues that Judge Dugan should not have
heard the postconviction motions because he was the judge who took his plea and
some of the allegations in the postconviction motions involved him. He argues that Judge Dugan should have known
to disqualify himself. In support of
this argument, Hamilton
cites to two local rules. The rules
cited by Hamilton
explain only the process for substitution or disqualification of a judge. Hamilton
does not cite to any authority to support his argument that the judge who
conducts the plea hearing and sentencing shall not also hear a motion for
postconviction relief in the same case.
¶24 Hamilton
also takes issue with the circuit court’s characterization of many of his
arguments as conclusory, and argues that the court erred when it refused to
hold a hearing on these issues. We have
reviewed the allegations by Hamilton
and we agree with the circuit court that many of these allegations are
conclusory. Hamilton must do more than merely state that
a fact is true. For example, he must do
more than say his co-defendants’ statements were coerced. He must point to the evidence in the record
that supports his argument, and then cite to the legal authority that supports
his conclusion that these facts show coercion.
We conclude that the circuit court did not err when it denied Hamilton’s motions for
postconviction relief without holding a hearing. Consequently, we affirm the judgment and
orders of the circuit court.
By the Court.—Judgment and orders
affirmed.
This
opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)5.