COURT OF APPEALS DECISION DATED AND FILED January 14, 2009 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. |
2008AP599 |
2001CF316 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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State of
Plaintiff-Respondent, v. Cornelius Flowers,
Defendant-Appellant. |
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APPEAL
from an order of the circuit court for
Before
Brown, C.J.,
¶1 PER CURIAM. Cornelius Flowers, pro se, appeals from the order summarily denying his motion for postconviction relief which was based on a claim of ineffectiveness of postconviction counsel. While we disagree with the trial court that Flowers should have raised the challenge in a Knight[1] petition to this court, we nonetheless affirm.
¶2 The State charged Flowers in two different cases. In case number 00CF786, he was charged with three counts of first-degree sexual assault of a child; in case number 01CF316 he was charged with one count of repeated sexual assault of a child and one count of physical abuse of a child. The cases, which involved two different child victims, were consolidated for trial.
¶3 On the third day of trial, the parties entered into a plea agreement. In exchange for his no-contest plea in 00CF786, two first-degree sexual assault charges were dismissed and one was reduced to second-degree. In exchange for his no-contest plea in 01CF316, the physical abuse charge was dismissed and the charging period on the sexual assault charge was amended. The court accepted Flowers’ plea. He was sentenced to fifteen years in 00CF786 and a consecutive thirty-five years’ imprisonment in 01CF316.
¶4 Represented by new counsel, Flowers moved for postconviction
relief pursuant to Wis. Stat. Rule 809.30(2005-06)[2]. He sought to withdraw his pleas on grounds
that they were not entered knowingly and voluntarily or, in the alternative,
that his counsel was ineffective for, among other reasons, failing to obtain a
ruling from the trial court regarding the amendment of the charging dates
before advising Flowers to accept the plea offer. After a Machner[3] hearing,
the trial court denied Flowers’ motion, this court affirmed and the supreme
court denied his petition for review.
¶5 In November 2007, Flowers moved pursuant to Wis. Stat. § 974.06 to withdraw
his plea on grounds that postconviction counsel was ineffective for failing to
raise several claims of ineffective assistance of trial counsel.[4] He alleged that postconviction counsel’s
ineffectiveness was a sufficient reason to bring the claim after his direct
appeal.
¶6 Whether a postconviction motion alleges sufficient facts to
entitle the defendant to a hearing for the relief requested calls for a mixed
standard of review. State v. Allen, 2004 WI
106, ¶9, 274
¶7 Before moving to the merits, we first address the trial
court’s rationale for summarily denying the motion. As both parties observe, the trial court
mistakenly reasoned that Flowers needed to bring a Knight petition to this
court. To bring a claim of ineffective
assistance of appellate counsel, a defendant should petition the appellate
court that heard the appeal for a writ of habeas corpus. Knight, 168
¶8 The familiar two-pronged test for ineffective assistance of counsel
claims requires defendants to prove both deficient performance and prejudice
from that deficiency. Strickland v.
¶9 Ineffective assistance claims present mixed questions of fact
and law. Marshall, 251
¶10 Flowers first claims his postconviction counsel was ineffective
because he did not challenge trial counsel’s failure to pursue an alibi defense. As part of the plea agreement, the original
charging period of February 1, 1997 to May 1, 1997 for the repeated sexual
assaults in 01CF316 was amended to May 1996 through December 1996. Flowers asserts that had trial counsel investigated,
he would have learned that Flowers was in the
¶11 Flowers submitted with his Wis.
Stat. § 974.06 motion a copy of an unsigned note entitled “Inmate
Request” directed to “Arleen” which purportedly lists the dates he was
incarcerated in the Kenosha county jail.
Accepting its validity for purposes of this discussion, the document
does not help Flowers in regard to the May—December 1996 amended charging
period. The note advises that he was
incarcerated from September 14 through November 8 of 1996 and again from
December 8, 1996 through June 15, 1997.
According to the document Flowers provided, he was incarcerated for only
78 days out of the 245-day charging period.
Exploring this defense would not have proved that Flowers was elsewhere
at the time the alleged incident took place.
¶12 Flowers next contends postconviction counsel was ineffective
for not challenging trial counsel’s failure to object to the amended
information. In his direct appeal, the
court disposed of a similarly stated challenge (“Trial counsel should have
obtained a ruling from the trial court regarding amendment to the
charge”). A matter litigated may not be
relitigated in a subsequent postconviction proceeding, no matter how artfully
the defendant may rephrase the issue. State
v. Witkowski, 163
¶13 Even if not previously litigated, Flowers’ underlying claim
that trial counsel was ineffective fails.
Trial counsel testified at the Machner hearing that he already had
investigated Flowers’ dates of incarceration and his whereabouts when not in
jail. Based on what he learned, he made
the judgment call not to press an objection to the amendment because he could
see no reason that the trial court would grant it. A strategic trial decision rationally based
on the facts and the law will not support a claim of ineffective assistance of
counsel. State v. Elm, 201
¶14 Flowers next contends that postconviction counsel was ineffective for not raising a claim that trial counsel was ineffective for failing to investigate certain allegedly exculpatory witnesses, to wit, three of Flowers’ children. He asserts they would have testified they never witnessed any inappropriate conduct between him and the victim.
¶15 Flowers raised the issue of failure to investigate exculpatory
witnesses in his first postconviction motion.
At the Machner hearing, he named five witnesses whose testimony he
thought would have benefited him. None
of those five were the witnesses he identifies here, however. Counsel’s actions usually are based on
information the defendant supplies, State v. Leighton, 2000 WI App 156,
¶40, 237
¶16 Finally, Flowers submits that postconviction counsel was ineffective for not asserting that trial counsel was ineffective for failing to challenge the factual basis for his plea as it related to the time frame alleged. Before accepting a defendant’s no-contest plea, the trial court must “[m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged.” Wis. Stat. § 971.08(1)(b); see State v. Harvey, 2006 WI App 26, ¶10, 289 Wis. 2d 222, 710 N.W.2d 482. We review a trial court’s determination of a sufficient factual basis under a clearly erroneous standard. See id.
¶17 For a court to accept the factual basis underlying the plea, a
defendant need not admit to the factual basis in his or her own words. State v. Thomas, 2000 WI 13, ¶18, 232
¶18 The amended charging dates were May through December of 1996. The record shows that the victim’s date of birth is February 11, 1991. She testified that she was five and in kindergarten when Flowers assaulted her “lots of times” when she was kept home to watch her two little sisters while her mother worked. She also testified the assaults occurred until he went to jail in December 1996. The State also advised the court that Department of Human Services records indicate that the residence the victim described was the one where they all lived together between May and December of 1996. The victim’s testimony and the totality of the circumstances provide a factual basis for Flowers’ no-contest plea.
¶19 We conclude that the record conclusively demonstrates that
Flowers is not entitled to relief. See Allen, 274
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1]
[2] All references to the Wisconsin Statutes are to the 2005-06 version except where noted.
[3]
[4] Flowers’ Wis. Stat. § 974.06 postconviction motion and this appeal address only case number 01CF316.