COURT OF APPEALS DECISION DATED AND FILED September 3, 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. |
2007CF1403 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Joseph P. Sileno, Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Fine, Kessler, JJ., and Daniel L. LaRocque, Reserve Judge.
¶1 LAROCQUE, J. Joseph P. Sileno appeals from a judgment entered following a trial to the court, wherein Sileno was found guilty of possession of a machine gun in violation of Wis. Stat. § 941.26(1)(a) (2005-06).[1] He also appeals from an order denying his postconviction motion. Sileno asserts four claims for our review: (1) his trial counsel provided ineffective assistance by failing to notify the Attorney General’s office when making the claim that § 941.26(1)(a) was unconstitutional; (2) the trial court should have granted the motion to dismiss on the ground that § 941.26(1)(a) was unconstitutional; (3) the trial court erred in denying the motion to suppress; and (4) the trial court erroneously exercised its discretion when it refused to modify the sentence based on new factors. Because Sileno failed to assert any prejudice as a result of trial counsel’s failure to notify the Attorney General; because Sileno failed to establish that the statute involved was unconstitutional; because the trial court did not err in denying the suppression motion; and because there was no erroneous exercise of sentencing discretion or new factors, we affirm.
BACKGROUND
¶2 On April 22, 2006, Milwaukee Police Officers Robert Dickerson
and Luke Chang were stopped in their patrol car in the area of North 20th and
West Center Streets, when they observed Sileno’s vehicle pulling into the
parking lot where they were parked. The
officers noticed that Sileno did not have any front license plates and
approached him to ask about this issue.
When the officer observed an object that may have been a knife in the
vehicle, he asked Sileno if he had anything illegal in his vehicle. Sileno told the officers that he did not have
anything illegal. The officers requested
permission to search the vehicle.
Officer Dickerson found a large knife and some counterfeit
¶3 On May 3, 2006, Sileno was charged with one count of possession of a machine gun in violation of Wis. Stat. § 941.26(1)(a). He pled not guilty and the case was set for a court trial. During the pre-trial proceedings, Sileno filed two motions. The first was a motion seeking to dismiss on the basis that the statute with which he was charged was unconstitutional. He asserted that the statute was constitutionally deficient in that it did not contain a mens rea element requiring the State to prove that the offender knew the firearm was an automatic weapon. His claim throughout the case has been that he did not believe the weapon was fully automatic. The trial court denied the motion, ruling that the statute did not contain a mens rea element and such did not render the statute vague or unconstitutional.
¶4 The second was a motion to suppress alleging that the search of the car was illegal. The trial court conducted a suppression hearing and heard testimony from both the police officers and Sileno. The police testified that Sileno consented to the search of his vehicle. Sileno testified that he did not give the police consent to search. The trial court found the police testimony to be the more credible account and denied the motion to suppress.
¶5 Following the disposition of the two motions, Sileno was charged with one count of felony bail jumping for failing to appear for a required court appearance. This bail-jumping charge was joined together with the firearms charge and the matter was scheduled for a court trial on June 4, 2007.
¶6 At trial, the court was presented with stipulated facts, which included the following. Sileno did possess or transport an Armalite M15A2 rifle, which he had legally purchased in 2003, in the trunk of his vehicle. Separately and subsequent to the rifle purchase, Sileno also purchased a “M16 trigger parts group + GI SEAR.” He intentionally installed on his rifle all of the trigger parts with the exception of the GI SEAR. He then placed the rifle in the trunk of his car. Sileno asserted that he did not install the GI SEAR piece because it would make his rifle an illegal fully automatic machine gun. He did state that when he turned twenty-one, he intended to install the last piece to make the rifle fully automatic after he obtained a federal firearms license.[2]
¶7 As noted above, the rifle was located in Sileno’s truck on April 22, 2006, and the police officers believed it to be fully automatic. It was sent to the State Crime Lab where it was test-fired and confirmed that the “firearm would shoot automatically, more than one shot, without manual reloading, by a single function of the trigger.”
¶8 It was also stipulated that Sileno knew he had to attend court on September 14, 2006 to enter a guilty plea. Sileno failed to appear. A bench warrant was issued and stayed until September 28, 2006. Sileno intentionally failed to appear and this was the basis for the felony bail jumping charge.
¶9 At the conclusion of the court trial, Sileno was found guilty on both counts. He was sentenced to thirty-eight months in prison, consisting of fourteen months of initial confinement and twenty-four months of extended supervision on the firearm count. The trial court found Sileno eligible to participate in the Challenge Incarceration Program, but not the Earned Release Program. Sileno was sentenced to nine months in the House of Correction on the bail-jumping charge, to be served concurrent to the firearm sentence.
¶10 Sileno filed a postconviction motion alleging the same issues raised in this appeal. The trial court denied the motion by written order. Sileno now appeals from the judgment and order.
DISCUSSION
A. Ineffective Assistance.
¶11 Sileno’s first claim is that his trial counsel provided ineffective assistance by failing to notify the Attorney General’s office that he was challenging the constitutionality of a statute, as required by Wis. Stat. § 806.04(11) (“If a statute … is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard.”). The trial court denied the motion on the basis that Sileno was not prejudiced by the failure to notify the Attorney General. We agree.
¶12 In order to establish that he or she did not receive effective
assistance of counsel, the defendant must prove two things: (1) that his or her lawyer’s performance was
deficient; and (2) that “the deficient performance prejudiced the
defense.” Strickland v.
¶13 In assessing the defendant’s claim, we need not address both
the deficient performance and prejudice components if he or she cannot make a
sufficient showing on one. See Strickland,
466
¶14 Here, it is undisputed that the trial court considered the merits of Sileno’s challenge to the statute notwithstanding his failure to notify the Attorney General. The trial court found the statute to be constitutional. Moreover, in the postconviction order, the trial court stated:
The court recognized at the March 15, 2007 proceedings that the Attorney General’s Office had not been notified and that they had a right to be present…. Even if the Attorney General’s Office had been notified, the court would have made the same ruling. Consequently, there is no prejudice to the defendant under Strickland v. Washington, 466 U.S. 668 (1984) for counsel’s failure to notify the Attorney General’s Office prior to the hearing on the motion to dismiss.
¶15 Sileno concedes in his appellate brief that he “is again raising the issue in order to avoid any claim of procedural default.” Sileno does not, in his brief, assert any facts, which if proven true, would establish that trial counsel’s failure to notify the Attorney General resulted in prejudice. Accordingly, we reject Sileno’s claim that his trial counsel provided ineffective assistance in this regard.
B. Motion to Dismiss—Unconstitutional.
¶16 Sileno’s next claim is that the trial court erred in denying his motion to dismiss. He asserts that Wis. Stat. § 941.26(1)(a) is unconstitutional because it does not contain a mens rea requirement, and as a result is vague for failing to give reasonable notice of the prohibited conduct. The trial court rejected this argument, noting that the statute does not require a mens rea element, is not unconstitutional and is not vague.
¶17 The constitutionality of a statute is a question of law,
reviewed de novo. State v. Post, 197
¶18
¶19 We are not convinced that Staples controls the issue here. As noted by the trial court when it rejected this claim:
What they said in Staples was, as we look at the congressional intent, as we the court look at it and interpret everything we believe the U.S. Congress intended to require a mens rea element. That is what Staples said, at least to my reading and that is a significant difference from saying, substantively, there must be a mens rea element or there is a violation of due process and since they didn’t say that, by implication it means that someone could create a statute that doesn’t have a mens rea element in there and not be violative of someone’s due process rights, which is exactly the situation that we have right here with Mr. Sileno.
We agree with the trial court’s
interpretation in this regard. Sileno’s
argument here is that the statute is unconstitutional because it does not
contain the mens rea element and thus
leaves him unable to present his claim that he did not know the rifle in his
possession was a machine gun. Sileno’s
primary objection is the discrepancy between the
¶20 Here, the Wisconsin statute is clear on its face that mens rea was not an element of the offense created by our legislature. The language of the statute clearly and simply states that the legislature intended the crime to be one of strict liability. Sileno does not present any legislative intent to establish that the Wisconsin legislature intended a mens rea element to be read into the statute, nor did he argue during the trial court proceedings that the Wisconsin statute should be construed to require the State to prove a mens rea element. Rather, he argued that a defendant charged under this statute should be allowed to present a mens rea defense, and the failure to include a mens rea element rendered the statute unconstitutional. Sileno fails to present any convincing authority which renders a statute unconstitutional solely because it does not require mens rea as an element. Based on these particular circumstances, the federal congressional intent relative to 26 U.S.C. § 5861(d), and Staples’ interpretation thereof, does not apply to the instant case.
¶21 Sileno also asserts that Wis.
Stat. § 941.26(1)(a) is void for vagueness. In support of this argument, he cites the
following sentence from our supreme court’s opinion in State v. Jadowski, 2004
WI 68, 272 Wis. 2d 418, 680 N.W.2d 810:
“It is a fundamental principle of law that an actor should not be
convicted of a crime if he had no reason to believe that the act he committed
was a crime or that it was wrongful.”
¶22 In order to determine whether a statute is void for vagueness, “we
must determine whether the statute is sufficiently definite to give reasonable
notice of the prohibited conduct to those who wish to avoid its penalties and
to apprise judges and juries of standards for the determination of guilt.”
(a) Any weapon that shoots, is designed to shoot or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.
(b) The frame or receiver of any weapon described under par. (a) or any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a weapon described under par. (a).
This language is clear and precise, setting forth in “sufficiently definite” terms the conduct that is prohibited under the statute involved. One cannot possess or transport a machine gun or fully automatic firearm. One cannot possess or transport a weapon that either shoots, is designed to shoot, or can be readily restored to shoot more than one shot with a single pull of the trigger. One cannot possess any part or combination of parts designed and intended for use in converting a weapon into a machine gun or fully-automatic weapon. Sileno conceded that he purchased the parts required to convert his rifle into a machine gun and had attached all but one of those parts to make that happen. Based on the foregoing statutory language, Sileno should have had reason to believe that his conduct was in violation of these statutes. Accordingly, we conclude that Sileno failed to establish his burden of proving § 941.26(1)(a) was unconstitutional, and we affirm the decision of the trial court.
C. Motion to Suppress.
¶23 Sileno also contends that the trial court erred in denying his motion to suppress the evidence discovered during the search of his vehicle. He claims that he did not give the police permission to search his vehicle, and, therefore, they could not constitutionally do so.
¶24 A motion to suppress evidence raises a constitutional question,
which presents a mixed question of fact and law. To the extent the trial court’s decision involves
findings of evidentiary or historical facts, those findings will not be
overturned unless they are clearly erroneous.
¶25 Sileno
accurately states that “[w]arrantless searches are per se unreasonable” and
violate the Fourth Amendment.
¶26 This
case was decided at the suppression hearing on the trial court’s finding that
the police account of what happened was more credible than Sileno’s version of
events. As Sileno concedes, “the trial
court was in a position to assess the credibility of the witnesses and the
trial court found that the officer was more credible” and this “may end the
inquiry.” This in fact does end the
inquiry. The police testified that
Sileno consented to the search of his vehicle.
Sileno testified that he did not consent. The trial court found the police testimony to
be more credible. Sileno does not
challenge the trial court’s credibility assessment.
¶27 It
is undisputed that consent is one of the well-established exceptions to the
warrant requirement of the Fourth Amendment.
State v. Phillips, 218
D. Sentencing.
¶28 Sileno’s
last claim relates to sentencing.
Although Sileno frames this claim by asserting that the trial court
erroneously exercised its sentencing discretion, he is actually seeking
sentence modification based on alleged new factors.[3]
¶29 Sentence modification involves a two-step process. First, a defendant must show the existence of
a new factor thought to justify the motion to modify sentence. Then, if the defendant has demonstrated the
existence of a new factor, the trial court must decide whether the new factor
warrants sentence modification. State
v. Franklin, 148
¶30 A new factor is
“a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because, even though it was then in existence, it was unknowingly overlooked by all of the parties.”
State v. Ralph, 156
¶31 Sileno argues that two new factors exist: (1) his sister was diagnosed with cancer; and (2) Sileno would not be able to participate in the Challenge Incarceration Program despite being eligible due to a waiting list. We reject each in turn.
¶32 First, Sileno seeks sentence modification on the basis that after his sentence, his sister was diagnosed with cancer and Sileno’s mother needs his help in caring for her. As noted by the trial court: “This factor is unfortunate; however, it is not an event or development which frustrates the purpose of the sentence.” We agree. Moreover, as pointed out by the State, the trial court was aware at the time of sentencing that Sileno’s sister suffered from other substantial disabilities, namely that she has cerebral palsy, is confined to a wheelchair, and requires round-the-clock care. Thus, the cancer development does not constitute a new factor.
¶33 Second, Sileno contends that his inability to participate in the Challenge Incarceration Program constitutes a new factor. We are not convinced. The trial court rejected this contention in its written postconviction order, ruling:
The defendant also states that although the court and the Department of Corrections have found him eligible for the Challenge Incarceration Program, he will not be able to participate in the program due to the waiting list. A court’s finding of eligibility for the Challenge Incarceration Program is merely a statement to the Department of Corrections that the court does not object to the defendant’s participation in the program. The court recognizes that its recommendation is not a mandate but a privilege that may or may not be granted by the Department. Consequently, when a court finds an offender eligible for the program, it does so with the understanding that the defendant may not be able to participate in the program. In this instance, the court did not base its sentencing decision upon the defendant’s participation in the Challenge Incarceration Program, and therefore, the court finds that the defendant’s inability to participate in the program due to the waiting list does not allege a new factor for modification purposes.
The sentencing court’s remarks reflect that eligibility for the program did not mean automatic entrance into the program. The trial court clearly thought Sileno would benefit from the program, but there is nothing to convince us that the trial court was relying on Sileno getting into the program. The sentence imposed was based on the seriousness of carrying around a fully-automatic weapon, the fact that this crime occurred while Sileno was on probation, the need to protect the public, and the lack of respect Sileno had for the court as evidenced by his bail jumping. The Challenge Incarceration Program was a bonus for Sileno to try to help him with his drug problem, but does not appear from the record to be “highly relevant” to the sentence. Thus, the purpose of the sentence was not frustrated by Sileno’s inability to participate in the program.
¶34 In sum, we reject each of Sileno’s claims on appeal and affirm the judgment and order.
By the Court.—Judgment and order affirmed.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Sileno turned twenty-one on March 15, 2005. He never applied for the license because by the time he turned twenty-one, he had been put on probation for two misdemeanors.
[3] There
is a consistent and strong policy against interference with the discretion of
the trial court in passing sentence. State
v. Paske, 163
It is similarly well-established and undisputed by the
parties in this case, that trial courts must consider three primary factors in
passing sentence. Those factors are “the
gravity of the offense, the character and rehabilitative needs of the
defendant, and the need to protect the public.”