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COURT OF APPEALS
DECISION
DATED AND FILED
August 20, 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
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IN COURT OF
APPEALS
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DISTRICT IV
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State of Wisconsin,
Plaintiff-Respondent,
v.
Bernard B. Adams,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Green County: James
R. Beer, Judge. Affirmed.
Before Lundsten, Higginbotham and Bridge, JJ.
¶1 PER CURIAM. Bernard Adams appeals a judgment
convicting him of four felonies, including attempted first-degree intentional
homicide, and first-degree sexual assault.
He contends that the State introduced inadmissible evidence at his
trial, and that trial counsel was ineffective in his pretrial efforts to
suppress that evidence. He also contends
that the trial court erred by denying his motion for appointment of
postconviction counsel. We affirm.
¶2 Adams was arrested at his
home after police identified him as the perpetrator of a sexual assault. He was transported to jail and made an
inculpatory statement during an interrogation that commenced about five hours
after his arrest. The circuit court
appointed counsel to represent Adams in this
proceeding after the State Public Defender’s office determined that he was
ineligible for representation under its standards.
¶3 Counsel filed a pretrial motion to suppress Adams’
post-arrest statement to police on the grounds that it was the product of an
illegal arrest. Accompanying the motion
was Adams’ affidavit in which he averred that
police officers forcibly removed him from his home in order to arrest him.
¶4 Adams lived in a trailer to the
front of which he had added a small enclosed porch, or entryway, with walls and
a door made from particle board. At the
hearing on his suppression motion an officer testified that the entry to the
porch was open, and that another officer, Rodney Hicks, entered it and knocked
on Adams’ front door. Adams then
came outside and was arrested in his yard.
A second officer at the scene testified that Adams
was arrested in his yard after Hicks knocked and asked him to come
outside. Adams’
wife testified that the porch door was closed and the officer knocked on that
door. She testified that, when Adams opened the porch door, he was physically dragged
outside and arrested. Adams did not
testify, and based on his wife’s testimony counsel argued that the arrest was
illegal because it was originated by force while Adams
was still inside his home, within the particle board enclosure. The circuit court found that the arrest
occurred after Adams voluntarily came out of
his residence, was therefore a lawful arrest, and provided no grounds to
suppress his subsequent statement.
¶5 After a Miranda-Goodchild
hearing the court found that Adams made his statement
freely, voluntarily, and intelligently after receiving and knowingly waiving
his Miranda
rights.
¶6 After Adams was convicted, he was denied postconviction
representation by the Public Defender’s office.
Consequently, he moved the circuit court for representation. His financial circumstances remained the
same, except for the added debt incurred in this proceeding from restitution
and attorney fee reimbursement. The
court denied representation, because his wife’s net income of $1440 exceeded
the then applicable federal poverty guideline of $1070 for a two person
household, and because the court considered his need for an attorney greater when
he faced trial.
¶7 Adams, representing himself,
subsequently filed a postconviction motion alleging that trial counsel
ineffectively represented him during the suppression proceedings. After evidentiary hearings on the motion the
trial court denied it, resulting in this appeal.
¶8 In order to succeed on his claim of ineffective assistance, Adams must show that counsel’s representation was
deficient and that the deficiency prejudiced him. See State v.
Erickson, 227 Wis.
2d 758, 768, 596 N.W.2d 749 (1999).
Proof of either the deficiency or the prejudice prong presents a
question of law this court reviews without deference. State v. Pitsch, 124 Wis. 2d 628, 634, 369
N.W.2d 711 (1985). If we conclude Adams has not proved one prong, we need not address the
other. See Strickland v. Washington, 466 U.S. 668, 697 (1984). To prove deficient performance, Adams must show that counsel’s specific acts or omissions
were “outside the wide range of professionally competent assistance.” Id.
at 690. In other words, the defendant
must establish that counsel’s conduct falls below an objective standard of
reasonableness. Id. at 687. To show prejudice, Adams
must demonstrate a reasonable probability that, but for the error, the outcome
of the proceeding would have been different.
Id.
at 694.
¶9 Adams contends on appeal
that his arrest was illegal because Hicks unlawfully entered his porch area
when the officers came to arrest him. Counsel’s
ineffectiveness, in Adams’ view, consisted of
counsel’s failure to argue that Hicks’ entry into the enclosed porch area
rendered the subsequent arrest unconstitutional, even if it occurred outside the
residence, without force. However, Adams
does not contest that Hicks entered the porch only to contact Adams
by knocking on the door to his trailer.
The subsequent arrest occurred because Adams voluntarily came outside, and had nothing to do
with which door Hicks chose to knock on.
Additionally, Adams presents no authority,
and we are aware of none, holding that Hicks made an unconstitutional intrusion
by entering the makeshift enclosure through its open door, solely in order to make
contact by knocking on the trailer’s front door. Consequently, counsel had no reasonable basis
in fact or law to challenge the arrest on the grounds Adams
now argues. We also conclude that a
reasonable attorney could have reasonably decided not to argue a theory of
illegal arrest requiring him/her to impeach the defendant’s only witness to the
arrest, and to essentially abandon the claim of forcible removal from the porch
presented in her testimony.
¶10 Additionally, even if Adams’ arrest had been illegal, Adams could not demonstrate prejudice from counsel’s
failure to establish its illegality. If,
as is the case here, an arrest is made with probable cause, statements made
later in custody are admissible even if the means of arrest were
unconstitutional. See New
York v. Harris,
495 U.S. 14, 17-19 (1990) (“[B]ecause
the officers had probable cause to arrest Harris for a crime, Harris was not
unlawfully in custody when he was removed to the station house, given Miranda
warnings and allowed to talk,” despite the fact that the arresting officers
violated Harris’ Fourth Amendment rights.).
¶11 The circuit court properly denied Adams’
request for appointed postconviction counsel.
This court has endorsed using the federal poverty guidelines to
determine if a defendant may be considered indigent for purposes of appointing
counsel. State v. Nieves-Gonzalez,
2001 WI App 90, ¶8, 242 Wis. 2d 782, 625 N.W.2d 913. Here, it is undisputed the income earned by Adams’ wife placed the family at least $340 per month in
net income above the applicable poverty guideline at the time for a two-person
family. Under these circumstances, the circuit court
reasonably exercised its discretion in denying counsel to assist in pursuing
postconviction relief, even if the trial court believed it appropriate to
appoint trial counsel based on the same economic data. See State v. Dean, 163 Wis. 2d 503, 514, 471
N.W.2d 310 (Ct. App. 1991) (whether to appoint counsel is a matter within the circuit
court’s decision).
By the Court.—Judgment and order
affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.