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COURT OF APPEALS DECISION DATED AND FILED July 21, 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. |
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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. Dylan J. Sullivan,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Dylan Sullivan appeals a judgment of conviction for repeated sexual assault of a child and an order denying his postconviction motion. Sullivan argues incriminating disclosures he made during his sex offender treatment were improperly considered when he was sentenced. He concedes in his reply brief that this argument must be raised as an ineffective assistance of counsel claim because his trial counsel did not object to the inclusion of the disclosures. However, because he did not develop an ineffective assistance argument, we conclude he has abandoned the claim. We therefore affirm the judgment and order.
BACKGROUND
¶2 In May 2007, Sullivan pled guilty to one count of repeated sexual assault of a child. At the time, Sullivan was on probation for another conviction for similar acts involving the same victim as in this case. As a condition of his probation, Sullivan was required to participate in a sex offender treatment program. The program required him to take a polygraph examination to provide his sexual history for treatment purposes. Sullivan took the examination in September 2007, approximately two weeks before he was scheduled to be sentenced in this case. During the polygraph, he admitted to sexually assaulting three other minors—two teenagers and a young child—several years earlier. This information was shared with his probation agent and his treatment provider. Sullivan’s agent submitted an addendum to the presentence investigation report describing Sullivan’s disclosures, and his sentencing was set over to allow the parties to address the new information. In February 2008, the circuit court sentenced Sullivan to fifteen years’ initial confinement and fifteen years’ extended supervision.
¶3 Sullivan filed a postconviction motion, arguing the
disclosures he made during the polygraph examination were compelled and that
considering them at sentencing violated the self-incrimination clause of the
Fifth Amendment. He also argued his
trial counsel was ineffective for failing to object to their admission and
requested a Machner hearing to address this issue.
¶4 The circuit court denied Sullivan’s motion. It concluded Sullivan forfeited his Fifth Amendment argument because his trial counsel did not object to the inclusion of the polygraph disclosures. Alternatively, it concluded that even if Sullivan had not forfeited the argument, the disclosures were properly admitted. It also concluded Sullivan was not entitled to a Machner hearing because he failed to show either deficient performance or prejudice.
DISCUSSION
¶5 On appeal, Sullivan’s opening brief simply restates his contention that Fifth Amendment protections should apply to the statements he made in his sex offender treatment program. However, he completely ignores the court’s primary conclusion: that he forfeited this argument. As a result, Sullivan also does not address the court’s conclusion he was not entitled to a Machner hearing. Instead, he summarily concludes:
For all the reasons set forth above, the respondent-appellant respectfully requests that this court remand this matter for a new sentencing. If the court deems it appropriate or necessary, defendant-appellant respectfully requests that the court remand this matter back to the circuit court for a hearing pursuant to State v. Machner.
¶6 The State argues—and Sullivan concedes in his reply
brief—that Sullivan did not preserve his Fifth Amendment argument for appeal
because his trial counsel did not object to the inclusion of the
disclosures. State v. Huebner, 2000 WI
59, ¶11, 235
¶7 An issue raised in the trial court but not raised on appeal
is deemed abandoned. A.O.
Smith Corp. v. Allstate Ins. Cos., 222
¶8 We agree that a Machner hearing is a precondition to finding a defendant received ineffective assistance of counsel. But if Sullivan wished to challenge the court’s denial of his request for a hearing, he needed to argue he was entitled to one. His explanation that his ineffective assistance claim rises and falls on the success of his Fifth Amendment claim misses the mark. While it may be true that his ineffective assistance argument depends on his Fifth Amendment argument, it does not follow that if there were merit to the latter he would automatically be entitled to a Machner hearing.
¶9 The standard for granting a postconviction motion, such as a
request for a Machner hearing, is whether the defendant has alleged “facts
which, if true, would entitle the defendant to relief.” Nelson v. State, 54
¶10 We discern no reason the standard for appealing the denial of a Machner hearing should be lower than the standard for requesting one in a postconviction motion. Sullivan simply did not argue on appeal that his trial counsel’s failure to object at the sentencing hearing to the admission of information obtained through his polygraph examination fulfilled the Strickland test. This fails to meet the standard required for granting a postconviction motion and it fails to meet the standard for appellate consideration.
¶11 We have previously observed that the “well known rule of law
[that issues not raised on appeal are deemed abandoned] … mean[s] that in order
for a party to have an issue considered by this court, it must be raised and
argued within its brief.” A.O.
Smith Corp., 222
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2007-08).