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 |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Randy Phillip Dupuis,
Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before
¶1 PER CURIAM. Randy DuPuis appeals orders denying his Wis. Stat. § 974.06[1] postconviction motion and three other motions. He argues ineffective assistance of trial counsel in numerous respects, prosecutorial misconduct, errors in the sentencing proceedings and that the judgment is void because it was signed by the clerk of the circuit court. Because we conclude that some of these arguments are procedurally barred and all of them lack merit, we affirm the trial court’s orders denying the motions without a hearing.
¶2 DuPuis, his brother Michael, Roy Owens and Walter Taylor were
charged in the shooting death of Antwain Dixon.
DuPuis drove Owens and Taylor, the other participants, to and from
¶3 Pursuant to a plea agreement, DuPuis pled no contest to an amended information charging one count of first-degree reckless homicide as a party to a crime. At the sentencing hearing, the prosecutor played a song, apparently written and performed by DuPuis, that favorably depicted violence. The song came to light as a result of DuPuis intercepted telephone conversation from the jail in which he asked his girlfriend to conceal the song from the police because he would be in bigger trouble if they found it. DuPuis testified at the sentencing hearing and called several witnesses. DuPuis’ attorney, noted that DuPuis’ brother was sentenced to forty-two months’ initial confinement and forty-eight months’ extended supervision. He asked the court to impose a nine-year sentence, consisting of forty-two months’ initial confinement and five-and one-half years’ extended supervision. The court sentenced DuPuis to twelve years’ initial confinement and five years’ extended supervision.
¶4 Because the time expired for filing a postconviction motion
under Wis. Stat. Rule 809.30, DuPuis’
motion is necessarily construed as a postconviction motion under Wis. Stat. § 974.06. DuPuis is entitled to only one postconviction
motion.
¶5 The trial court denied the postconviction motion without a
hearing under Wis. Stat. § 974.06(3). A postconviction motion may be denied without
a hearing in three situations: (1) if
the facts alleged in the motion, assuming them to be true, do not warrant
relief; (2) if any key factual allegation is conclusory; or (3) if the record
conclusively demonstrates that the moving party is not entitled to relief.
¶6 DuPuis
argues ineffective assistance of trial counsel in numerous respects,
particularly regarding the sentencing hearing.
He argues that his counsel should have retained a different private
investigator after DuPuis’ brother accepted a plea agreement and turned State’s
evidence. He also argues that his
counsel failed to review the presentence investigation report (PSI) with him,
inappropriately requested a greater sentence for DuPuis than for his brother, failed
to warn DuPuis of the dangers of cross-examination if he testified at the
sentencing hearing and failed to inform him that he could apologize while
exercising his right of allocution rather than by testifying, failed to object to
the prosecutor’s use of the song at the sentencing hearing, failed to
familiarize himself with the facts of the case and did not object to the
prosecutor’s version of the facts.
¶7 To
establish ineffective assistance of counsel, DuPuis must show deficient
performance and prejudice. Strickland
v.
¶8 None
of DuPuis’ claims of ineffective assistance of counsel establish deficient
performance and prejudice. DuPuis’
argument that his counsel should have hired a new private investigator, in
addition to being procedurally barred because it was not raised in his initial
postconviction motion, is conclusory and does not identify any actual
prejudice. DuPuis does not allege any
specific facts that would establish how retention of the initial private
investigator affected his decision to plead no contest or the outcome of the
sentencing hearing.
¶9 DuPuis
next argues that his trial counsel was ineffective by failing to discuss the
PSI with DuPuis and failing to correct errors in the PSI. DuPuis indicates that he has never reviewed
the PSI and does not know its contents, but does not allege that he attempted
to obtain access through the procedures set out in State v. Parent,
2006 WI 132, ¶43, 298
¶10 DuPuis faults his trial counsel for recommending a greater sentence for Randy than for his brother, Michael. Counsel recommended the same term of initial confinement and eighteen months greater extended supervision than Michael received. His counsel’s recommendation constituted a reasonable strategy under the circumstances. Michael was convicted of a lesser offense punishable by twelve-and one-half years’ in prison. DuPuis was convicted of an offense punishable by sixty years in prison. DuPuis also conceded he was a leader, and his witnesses at the sentencing hearing confirmed his leadership role over his brother. His counsel’s acknowledgment that he should receive a longer term of extended supervision was reasonably designed to maintain credibility with the court for consideration of the recommended sentence.
¶11 DuPuis argues his counsel was ineffective for failing to explain
the consequences of testifying at his sentencing hearing and subjecting him to
cross-examination. DuPuis indicates
that he merely wanted to apologize to
¶12 DuPuis
argues his counsel was ineffective for not challenging the State’s version of
the crime at the sentencing hearing. He
argues that the prosecutor and the court erroneously believed Randy instructed
Michael to give the gun to Taylor and Owens.
DuPuis contends this version of the crime is not supported by Michael’s
statement to the police. However, as DuPuis
notes, immediately before the shooting “everyone looked at Michael and he
assumed he was to give Taylor and Roy Owens the gun.” In this context, “everyone” would include DuPuis. His role in inducing Michael to provide the
gun did not have to be established by specific words. In addition, when he testified, DuPuis was
offered an opportunity to give his version of the crime. His counsel would not have had any basis for
objecting to the prosecutor’s version of the events. The most appropriate way to challenge the
prosecutor’s version was to allow DuPuis to testify and correct any incorrect impression
left by the prosecutor. DuPuis cannot
fault his counsel for his own failure to correct any discrepancies when he was
given the chance.
¶13 DuPuis
also argues his counsel should have corrected the prosecutor’s erroneous
statement that
¶14 DuPuis’
complaints that the prosecutors played the song at the sentencing hearing do
not establish any prosecutorial misconduct or ineffective assistance of trial
counsel for failure to object to the song’s introduction. The prosecutor learned of the song’s
existence through a monitored jail telephone call. A sign in the jail notified inmates that the
telephone calls were monitored. Use of
the telephone in that circumstance constitutes consent to intercept the
communication.
¶15 DuPuis
argues that the prosecutor was required to disclose the seizure of the song
pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady requires the prosecution
to disclose exculpatory and mitigating evidence. The song is not exculpatory and does not
mitigate DuPuis’ involvement in the crime.
¶16 DuPuis
next argues the court sentenced him based on incorrect information. The only information he identifies is the
prosecutor’s incorrect assertion that he was convicted of domestic abuse in
1999 and a statement in the PSI that he was sentenced to six months in jail. DuPuis correctly notes that the domestic
abuse charge was dismissed when he pled guilty or no contest to disorderly
conduct. DuPuis denies without any
embellishment that he served six months in jail on a marijuana charge. Against the background of this crime and DuPuis’
prior record, these alleged errors are de minimis. DuPuis postconviction motion describes
correction of these errors as a “new factor” justifying a reduced
sentence. A new factor is a fact highly
relevant to the sentence that frustrates the purpose of the sentence imposed.
¶17 Finally, DuPuis argues the judgment of conviction is invalid because it was signed by the clerk of the circuit court. Wisconsin Stat. § 972.13(4) specifically allows a clerk to sign criminal judgments.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.