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COURT OF APPEALS
DECISION
DATED AND FILED
January 29, 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.
Lonnie
L. Jackson,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: DENNIS
P. MORONEY, Judge. Affirmed.
Before Curley, P.J., Wedemeyer and Fine, JJ.
¶1 PER CURIAM. Lonnie L. Jackson appeals
from an order summarily denying his motion for postconviction relief. We conclude that Jackson is not entitled to an evidentiary
hearing on the only claim that is not procedurally barred—his ineffective
assistance claim against postconviction counsel—because the trial court
properly exercised its discretion in summarily denying his motion after it
determined that his allegations were either wholly conclusory or conclusively
refuted by the record. Therefore, we
affirm.
¶2 A jury found Jackson
guilty of four first-degree sexual assaults of the then nine-year-old daughter
of his live-in girlfriend, and acquitted him of one count of sexual assault of
another nine-year-old girl. The trial
court imposed concurrent sentences of fifteen, fifteen, forty and forty-five
years. This court affirmed the judgment
on direct appeal. See State v. Jackson,
No. 2004AP1536-CR, unpublished slip op. ¶24 (WI App Aug. 16, 2005).
¶3 Jackson
moved for postconviction relief pursuant to Wis.
Stat. § 974.06 (2005-06), raising numerous issues
including the ineffective assistance of trial and postconviction counsel. The trial court summarily denied the motion,
reviewing the sufficiency of Jackson’s allegations against postconviction
counsel pursuant to State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996). Jackson
appeals from the summary denial of his postconviction motion.
¶4 To demonstrate entitlement to a postconviction evidentiary
hearing, the defendant must meet the following criteria:
Whether a defendant’s
postconviction motion alleges sufficient facts to entitle the defendant to a
hearing for the relief requested is a mixed standard of review. First, we determine whether the motion on its
face alleges sufficient material facts that, if true, would entitle the
defendant to relief. This is a question
of law that we review de novo. [State v.] Bentley, 201 Wis.
2d [303,] 309-10[, 548 N.W.2d 50 (1996)].
If the motion raises such facts, the [trial] court must hold an
evidentiary hearing. Id. at 310;
Nelson v. State, 54 Wis. 2d 489, 497, 195
N.W.2d 629 (1972). However, if the
motion does not raise facts sufficient to entitle the [defendant] to relief, or
presents only conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief, the [trial] court
has the discretion to grant or deny a hearing.
Bentley, 201 Wis. 2d at 310-11; Nelson,
54 Wis. 2d
at 497-98.
State
v. Allen, 2004 WI 106, ¶9, 274 Wis.
2d 568, 682 N.W.2d 433.
As
an assistance to defendants and their counsel, we propose that postconviction
motions sufficient to meet the Bentley standard allege the five
“w’s” and one “h”; that is, who, what, where, when, why, and how. A motion that alleges, within the four
corners of the document itself, the kind of material factual objectivity we
describe above will necessarily include sufficient material facts for reviewing
courts to meaningfully assess a defendant’s claim.
Id., ¶23 (footnote omitted). “We require the [trial] court ‘to form its
independent judgment after a review of the record and pleadings and to support
its decision by written opinion.’ Nelson, 54 Wis. 2d at 498. See Bentley,
201 Wis. 2d
at 318-19 (quoting the same).”
Id., ¶9.
¶5 In addition to meeting the Allen requisites, Jackson must also meet
the requisites to maintain an ineffective assistance claim because that is the
only context pursuant to which his postconviction issues are properly before
us. To demonstrate ineffective
assistance, the defendant must show that counsel’s performance was deficient,
and that this deficient performance prejudiced the defense. Strickland v. Washington,
466 U.S.
668, 687 (1984). To establish deficient
performance, the defendant must show that counsel’s representation was below
objective standards of reasonableness. See State v. McMahon, 186 Wis. 2d 68, 80, 519
N.W.2d 621 (Ct. App. 1994). To establish
prejudice, the defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland,
466 U.S.
at 694. Prejudice must be “affirmatively
prove[n].” State v. Wirts,
176 Wis. 2d
174, 187, 500 N.W.2d 317 (Ct. App. 1993) (citation omitted; emphasis in Wirts). The necessity to prove both deficient
performance and prejudice obviates the need to review proof of one, if there is
insufficient proof of the other. See State v. Moats, 156 Wis. 2d 74, 101, 457
N.W.2d 299 (1990).
¶6 Jackson alleges that he did not raise these issues on direct
appeal because his postconviction counsel was ineffective for failing to
challenge trial counsel’s effectiveness.
We conclude that Jackson’s allegation of postconviction counsel’s
ineffectiveness constitutes a sufficient reason to overcome the procedural bar
of
State v. Escalona-Naranjo, 185 Wis.
2d 168, 181-82, 517 N.W.2d 157 (1994). See State v. Robinson, 177 Wis. 2d 46, 52-53, 501 N.W.2d 831 (Ct. App.
1993). We therefore review Jackson’s
ineffective assistance claims against postconviction counsel for failing to
pursue trial counsel’s ineffectiveness for failing to: (1) investigate the facts, witnesses and an
alleged alibi defense, and by failing to seek a continuance to conduct a
belated investigation to prepare for trial; (2) challenge the amendment of the
information alleging multiplicitous and overly broad and vague charges; (3)
waive a jury trial and insist on a bench trial; (4) “reaffirm the objection” to
the admissibility of videotaped excerpts at trial, which included other acts
evidence; (5) move to dismiss the charges for insufficient evidence including
the lack of evidence of Jackson’s intent; (6) object to improper jury
instructions; and (7) challenge the excessiveness of Jackson’s sentence.
¶7 Jackson
alleges that his trial counsel was ineffective for failing to investigate the
facts and witnesses necessary to properly prepare his defense. His allegations do not meet the specificity
requirements necessary to mandate an evidentiary hearing, particularly in the
context of ineffective assistance where prejudice must be “affirmatively prove[n].” Wirts,
176 Wis. 2d at 187 (emphasis in Wirts); see State v. Flynn, 190
Wis. 2d 31, 48, 527 N.W.2d 343 (Ct. App. 1994) (“Moreover, ‘[a] defendant who
alleges a failure to investigate on the part of his counsel must allege with
specificity what the investigation would have revealed and how it would have
altered the outcome of the [proceeding].’”) (citation omitted; first alteration
by Flynn);
see also Strickland, 466 U.S. at 694. Insofar as Jackson
contends that his trial counsel should have moved for a continuance to
investigate these matters, Jackson
has not alleged with particularity the identity of these potential witnesses or
the substance of their proposed testimony.
Jackson’s
failure to satisfy the Flynn requisites on his failure to
investigate allegations also negates his entitlement to an evidentiary hearing
on his continuance allegations because he has not alleged sufficient material
facts to demonstrate that a continuance would have been reasonably probable to
have changed the outcome. See Strickland,
466 U.S.
at 694. Consequently, Jackson’s allegations relating to his counsel’s
alleged failure to investigate and seek a continuance are wholly conclusory and
do not warrant an evidentiary hearing. See Allen,
274 Wis. 2d 568, ¶9; Flynn, 190 Wis. 2d at 48.
¶8 Jackson
also alleges that his trial counsel should have moved to dismiss the amended
charges as multiplicitous, overly broad and vague, claiming that there were no
differences among several of the charges.
He misunderstands, however, that the difference was factual; each
charged offense occurred at a different time.
Each contact constituted a separate and distinct sexual assault. Jackson’s
multiplicity allegations are conclusively belied by the record because each
charged assault allegedly occurred at a different time. His claim that the charges are overly broad
and vague also does not warrant an evidentiary hearing pursuant to
State v. Machner, 92 Wis. 2d
797, 804, 285 N.W.2d 905 (Ct. App. 1979) because Jackson had fair notice of the
charges he was compelled to defend against. See State v. Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App.
1988) (citations and text omitted) (“[w]here the date of the commission of the
crime is not a material element of the offense charged, it need not be
precisely alleged. Time is not of the
essence in sexual assault cases … [and they] do not require proof of an exact
date.”). Trial counsel did not perform
deficiently by failing to raise nonmeritorious objections to the amended
information. See State v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235 (1987)
(counsel is not obliged to file nonmeritorious motions to avoid an ineffective
assistance claim).
¶9 Jackson
claims that he repeatedly told his trial counsel that he wanted a bench trial,
not a jury trial. The trial court
claimed it was unaware of his alleged request.
Jackson
is entitled to a jury trial, not a bench trial.
See U.S. Const. amend. VI; Wis. Const. art. I, § 7. Consequently,
Jackson must show that he timely told his trial
counsel that he did not want a jury trial, that trial counsel did not have a
strategic objective in not timely informing the trial court of Jackson’s
request, and that had Jackson
not had a jury trial it was reasonably probable that the outcome would have
been different. See Strickland, 466
U.S. at 690-94; State
v. Felton, 110 Wis.
2d 485, 503, 329 N.W.2d 161 (1983) (strategic decisions that are reasonable do
not constitute ineffective assistance).
Therefore, even if Jackson
had timely told his trial counsel that he did not want his case tried to a
jury, he has not shown how he was prejudiced by a jury trial. See id. Without
showing prejudice, he cannot prevail on an ineffective assistance claim. See Moats, 156 Wis. 2d at 101.
¶10 Jackson
claims that his trial counsel was ineffective for failing to “reaffirm the
objection” to the admissibility of excerpts of the videotape and other acts
evidence at trial. We evaluate this
strictly as an ineffective assistance claim because that is the only basis on
which this issue is properly before us. See Escalona,
185 Wis. 2d
at 181-82. This claim requires Jackson to show that trial counsel’s failure to “reaffirm
the objection” constitutes ineffective assistance since Jackson concedes that his trial counsel
objected; he criticizes trial counsel for not “reaffirm[ing] the
objection.” Jackson has not shown prejudice, namely, that
had trial counsel repeated his objection it is reasonably probable that the
trial court would have reconsidered its rulings.
¶11 Trial counsel objected to the videotape’s admissibility on
foundational and substantive grounds. Jackson’s trial counsel
repeatedly objected to the tape’s admissibility, however, the trial court
explained at each juncture why it was denying his objections. Jackson
also complains about the admissibility of other acts evidence incident to the
videotape evidence. At one point, the
trial court responded to trial counsel’s objection to a particular excerpt of
the videotape where there was footage of some neighbor girls playing
outside. The State claimed that that
particular footage was shown to establish that Jackson
was the videographer; trial counsel objected, contending that that thirty-eight-second
excerpt of girls playing, implicitly suggested that Jackson was interested in videotaping the
neighbor girls. The trial court,
acknowledging that excerpt was irrelevant and prejudicial, and offering to give
the jury a limiting instruction, explained, however, that a limiting
instruction directed to that particular segment, would highlight the irrelevant
and prejudicial evidence to the jury.
The trial court also denied trial counsel’s motion for a mistrial,
explaining that the prejudicial excerpt was insufficient to warrant a
mistrial. Trial counsel preserved his
objection, and the prosecutor agreed not to comment or ask witnesses to comment
on that segment, shown as part of the entire videotape.
¶12 This example demonstrates that the trial court was aware of the
problematic nature of the videotape evidence, but when pressed, declined to
reconsider its ruling. Jackson’s allegations of ineffective
assistance for trial counsel’s failure to “reaffirm the objection” in the
context of the trial court’s principally discretionary determinations are
insufficient to raise an issue of deficient performance or prejudice to warrant
a Machner
hearing. See Machner, 92 Wis. 2d at 804.
¶13 Jackson
also challenges the sufficiency of the evidence. We rejected that issue on its merits in Jackson’s direct
appeal. See Jackson, No. 2004AP1536-CR,
unpublished slip op. ¶¶20-24.
¶14 Jackson
also contends that the trial court submitted erroneous instructions to the jury
by “allow[ing] the jury to pick any date or time as it saw fit.” The trial court instructed the jury on a
range of dates when the claimed assaults occurred, as opposed to specific dates. The prosecutor explained however, that the
time and date of the charged offenses need not be precisely specified. See Fawcett, 145 Wis. 2d at 250. Defense counsel emphasized to the jury in
closing argument that the State offered a broad time frame regarding Jackson’s alleged
commission of these offenses. He brought
the lack of a precise date to the jury’s attention; he was not ineffective.
¶15 Jackson’s final complaint is that counsel was ineffective for
failing to challenge his allegedly excessive sentence by postconviction motion
in that “the trial court abuse[d] it’s [sic] discretion by not following the
sentencing guidelines, and … the defendant [was] punished for the argument with
the trial judge.” This conclusory
allegation, challenging a discretionary sentencing decision, does not show that
Jackson’s
sentence was excessive, and is insufficient to warrant a Machner hearing.
¶16 Jackson
has alleged a multitude of issues. We
only consider those properly preserved issues raised in his postconviction
motion and pursued on appeal. See Wirth
v. Ehly, 93 Wis.
2d 433, 443-44, 287 N.W.2d 140 (1980), superseded on other grounds by Wis. Stat. § 895.52. Of those properly preserved issues, only
those alleged as postconviction counsel’s ineffectiveness are properly before
us. See
Escalona, 185 Wis. 2d at 181-82. Jackson’s
allegations fail as merely conclusory, or as conclusively demonstrated by the
record are not viable claims for relief.
We therefore affirm the denial of the trial court’s order summarily
denying Jackson’s
postconviction motion.
By the
Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule
809.23(1)(b)5.