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COURT OF APPEALS
DECISION
DATED AND FILED
August 25, 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 I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Charles G. Montgomery,
Defendant-Appellant.
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APPEAL
from an order of the circuit court for Milwaukee County: jeffrey
a. wagner, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Charles G. Montgomery appeals
from an order denying his Wis. Stat. § 974.06
(2007-08)
motion for postconviction relief. In
that motion, Montgomery
contended that his trial and postconviction counsel had been ineffective. After Montgomery
was unable to procure the presence of trial counsel at an evidentiary hearing,
the circuit court denied the motion. We
affirm.
BACKGROUND
¶2 Montgomery was charged with
second-degree reckless homicide in connection with the death of Jessie Neely,
the estranged husband of Montgomery’s
sister, Sheila Neely. According to the
Criminal Complaint, Sheila had obtained a restraining order against
Jessie. On May 26, 2002, at approximately
12:30 a.m., Jessie came to Sheila’s house and tried to enter. Sheila went to Montgomery who was sleeping in
the basement and asked for help. Montgomery grabbed a gun
and went outside.
¶3 According to Montgomery’s
statement to police, when he got outside, he yelled for Jessie. Jessie jumped out from behind the house and
pushed Montgomery. Montgomery
told police that he began falling backwards and the gun discharged an unknown
number of times. Jessie started running
toward an alley. Montgomery dropped the gun and returned to
Sheila’s house.
¶4 At 1:52 a.m., officers were dispatched to a report of
“shooting–man down” and found Jessie dead in the alley. The medical examiner determined that Jessie
had been shot once in the upper back and died from loss of blood.
¶5 This was a “negotiated issuance” and, on June 27, 2002, Montgomery pled guilty to
the crime charged in the Criminal Complaint.
The court sentenced Montgomery
to thirteen years of initial confinement and five years of extended
supervision.
¶6 Montgomery
filed a Wis. Stat. Rule
809.30(2)(h) postconviction motion seeking to withdraw his guilty plea as not
knowingly, voluntarily and intelligently entered. He also argued that his trial counsel
provided ineffective assistance of counsel by failing to provide him with all
necessary information and for not fully investigating the case. The circuit court denied the postconviction
motion without a hearing. Montgomery
appealed.
¶7 On appeal, this court affirmed. State v. Montgomery, No. 2004AP2398-CR,
unpublished slip op. (WI App Jan. 31, 2006).
This court held that the circuit court properly denied Montgomery’s
ineffective assistance of counsel claim without a hearing because he did “not
identify the specific information that was lacking, and [did] not explain with
specificity how having that information sooner would have affected his decision
to plead guilty.” Id., ¶11. This court also noted that “the record
belie[d] Montgomery’s
assertions that he lacked information about his case.” Id.,
¶12. This court pointed to the
discussion, at the outset of the sentencing hearing, between the circuit court
and Montgomery
about his dissatisfaction with his attorney’s representation. During that discussion, Montgomery’s
trial attorney told the court that Montgomery
had been given everything that counsel had received from the State before
entering his guilty plea. Id. The trial court found that there was nothing
in the record that supported Montgomery’s
assertion that he had not been provided with police reports and witness
statements. Id.
¶8 In Footnote 2 to our opinion, this court addressed
Montgomery’s “Motion to Supplement” his brief to include “newly discovered
evidence [that] supports [the] claim that he did not receive discovery information
before his guilty plea.” Id., ¶12,
n.2. Because Montgomery sought to add evidence to the
appellate record that had not been presented to the trial court, this court
denied the motion. We stated, however,
that the motion was “denied, without prejudice to Montgomery’s right to raise the question of
newly discovered evidence, and its impact, by proper motion with the trial
court.” Id.
¶9 Following remittitur, Montgomery
filed a Wis. Stat. § 974.06
postconviction motion premised in large part on that newly discovered
evidence—a letter, dated July 9, 2002, to Montgomery from his trial attorney
that stated, among other things: “Enclosed please find a copy of the discovery
regarding this matter.” Montgomery offered the
letter in support of his assertion that he did not receive the discovery before
he pled guilty on June 27, 2002. To
avoid the procedural bar of State v. Escalona-Naranjo, 185 Wis. 2d
168, 517 N.W.2d 157 (1994), Montgomery argued that postconviction and appellate
counsel (the same person) was ineffective for not getting the letter into the
postconviction record and for not making sufficiently specific factual
allegations describing the information in the police reports that Montgomery
claimed to not know at the time of his plea.
See State ex rel. Rothering v. McCaughtry, 205
Wis. 2d 675,
681-82, 556 N.W.2d 136 (Ct. App. 1996) (A claim that postconviction counsel was
ineffective may be “sufficient reason” to avoid the procedural bar of Escalona-Naranjo.).
Montgomery
then reiterated the underlying argument he made on direct appeal—that his trial
attorney was ineffective because he did not give Montgomery the discovery materials until
after he pled guilty.
¶10 After briefs were filed, the circuit court scheduled Montgomery’s motion for a
Machner
hearing. At that hearing, Montgomery’s attorney told
the court that trial counsel, Ronald Langford, had left the practice of
law. Although a private investigator had
discovered where Langford was living, Langford did not answer the door on the
two days before the hearing and a “subpoena … was tacked on the door” that
morning. Langford did not appear at the
hearing.
¶11 As a result of the unavailability of Langford, the State argued
that Montgomery’s
motion must be denied. Relying on State
v. Lukasik, 115 Wis. 2d 134, 340
N.W.2d 62 (Ct. App. 1983), the State argued that because “the transcript [of
the sentencing hearing] reads that Langford gave [Montgomery] the discovery [before the plea],
he’s got to have Langford here in order to say that he didn’t.” The trial court, noting that the letter
“could be taken so many different ways,” agreed with the State’s contention
and, therefore, denied Montgomery’s
motion.
DISCUSSION
¶12 In order to successfully raise an ineffective assistance of
counsel argument, trial counsel must appear and testify at a Machner
hearing. State v. Curtis, 218 Wis. 2d 550, 554,
582 N.W.2d 409 (Ct. App. 1998). The
hearing “is important not only to give trial counsel a chance to explain his or
her actions, but also to allow the trial court, which is in the best position
to judge counsel’s performance, to rule on the motion.” Id. When trial counsel is unavailable “to explain
or rebut the defendant’s contentions because of death, insanity or … for other
reasons, then the defendant should not, by uncorroborated allegations, be
allowed to make a case for ineffectiveness.
The defendant must support his allegations with corroborating
evidence.” Lukasik, 115 Wis. 2d at
140. There is a strong presumption that the attorney
rendered effective assistance and made all significant decisions exercising
reasonable professional judgment, see
Strickland
v. Washington, 466 U.S. 668, 689 (1984), and “the defendant cannot by
his own words rebut this presumption.” Lukasik,
115 Wis. 2d
at 140.
¶13 Because Langford was unavailable, the issue becomes whether Montgomery had sufficient
corroborating evidence of Langford’s alleged ineffectiveness. Montgomery relies on two items—the July 9,
2002 letter and Langford’s failure, while responding to Montgomery’s complaints
about his representation, to produce written proof from his file of when
discovery material were given to Montgomery.
¶14 We agree with the circuit court’s determination that Montgomery did not
present sufficient corroborating evidence.
As noted, Montgomery
complained about Langford’s representation at the outset of the sentencing
hearing. Langford told the court that Montgomery believed that
Langford “did nothing for his
case, … did no investigation, … answered no questions, [and] … had no
discussions [with him] about the case.”
When Montgomery
told the court that he had not received “the statements and everything” and
“the papers,” Langford said, “He got everything, Judge. I sent him everything that I had gotten from
the State.” The court asked when the
discovery was given to Montgomery,
and Langford said that he was “almost certain that it would have been some time
in June, Judge.” After describing his discussions with the
assistant district attorney, Langford also told the court that he sent “the
packet of information” to Montgomery “[s]ome time in June” although he
“d[id]n’t have an exact date.” Langford
said, “[e]verything was sent to [Montgomery
and] [w]e discussed what was in there.” Langford
described his discussions with Montgomery during
which Montgomery explained “his version” of the
shooting, and he again told the court that Montgomery “was given the material.”
¶15 The July 9, 2002 letter must be considered against the
above-described evidentiary backdrop of Langford’s repeated statements that he gave
the discovery material to Montgomery before Montgomery pled guilty. The letter merely states: “Enclosed please find a copy of the discovery
regarding this matter.” The July 9, 2002
letter is ambiguous. The enclosed
discovery could have been a second copy of discovery material previously given
to Montgomery
or it could have been additional discovery material over and beyond
previously-provided discovery. In light
of the statements made by Langford before sentencing that indicated that he
gave discovery materials to Montgomery
before he pled guilty, the July 9, 2002 letter is not sufficient corroborating
evidence.
¶16 Montgomery also relies on
Langford’s failure to provide, from his file, written proof of the date on
which he gave discovery materials to Montgomery. Langford, however, repeatedly told the court that
he gave the material to Montgomery
before the plea. The apparent absence of
written proof in the file is not corroborating evidence. The law presumes that Langford had a
reasonable basis for his conduct, and Montgomery
cannot rely on negative evidence such as the lack of written documentation in
the file to rebut the presumption. See Lukasik,
115 Wis. 2d
at 340.
¶17 Because Montgomery did not
present evidence that met the corroboration requirement of Lukasik, the trial court
properly denied Montgomery’s
postconviction motion.
By the Court.—Order affirmed.
This
opinion will not be published. See Wis.
Stat. Rule 809.23(1)(b)5.