COURT OF APPEALS DECISION DATED AND FILED April 6, 2010 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 I |
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State of Plaintiff-Respondent, v. Tyrone D. Munson, Defendant-Appellant. |
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APPEAL from an order of the circuit court for
Before Fine,
Kessler and Brennan, JJ.
¶1 PER
CURIAM. Tyrone D. Munson, pro
se, appeals from an order denying his Wis.
Stat. § 974.06 motion, which alleged his postconviction attorney
was ineffective for failing to raise certain errors by trial counsel.
BACKGROUND
¶2 In
July 1998, Munson entered no-contest pleas to the ten counts charged in this
case:[1] two counts of kidnapping, three counts of
armed robbery, and five counts of first-degree sexual assault. Half of the counts charged Munson as party to
a crime. In September 1998, Munson was sentenced
to a combination of consecutive and concurrent sentences totaling 290 years’
imprisonment.
¶3 A
no-merit appeal was filed. In the
no-merit report, counsel identified four possible issues: whether Munson’s pleas were knowing and
voluntary; whether an adequate factual basis existed for the pleas; whether the
circuit court properly exercised its sentencing discretion; and whether trial
counsel provided adequate assistance.
Munson responded to the no-merit report, claiming trial counsel coerced
his plea, that he advised trial counsel he did not understand the plea
questionnaire, and that there was “not effective assistance of
counsel” because it was “too difficult” for his attorney to defend him. We summarily affirmed the judgment of
conviction. See State v. Munson,
No. 1999AP1301-CRNM, unpublished slip op. (WI App Aug. 14, 2000).
¶4 On
April 10, 2009, Munson filed a motion for postconviction relief under Wis. Stat. § 974.06. He alleged that postconviction counsel was
ineffective for failing to claim that:
(1) trial counsel was ineffective for failing to seek suppression of
Munson’s statements to police, coercing his plea, and failing to seek a private
presentence investigation report and character witnesses for sentencing; (2)
the plea colloquy was invalid and his plea was not knowing, intelligent, and
voluntary; and (3) the circuit court’s sentence was an erroneous exercise of
discretion.
¶5 The
circuit court denied the motion. It
concluded that to the extent Munson was raising claims previously decided by
this court, those claims were barred by State v. Walberg, 109 Wis. 2d
96, 103, 325 N.W.2d 687, 691 (1982). The
circuit court also concluded that to the extent Munson was making new claims,
those new claims were barred by State v. Tillman, 2005 WI App 71,
¶27, 281 Wis. 2d 157, 171–172, 696 N.W.2d 574, 581, because Munson had
failed to raise them in response to the no-merit report. Munson appeals.
DISCUSSION
¶6 On
appeal, Munson essentially renews the arguments made in his Wis. Stat. § 974.06 motion. He asserts that the plea colloquy was
deficient and his plea was not knowing, intelligent, or voluntary, and that the
circuit court erroneously exercised its sentencing discretion. Munson also asserts he is not barred from claiming
postconviction counsel was ineffective for failing to raise ineffective-assistance-of-trial-counsel
claims.
¶7 The
types of claims for relief that can be brought under Wis. Stat. § 974.06 are limited to those of
constitutional or jurisdictional character.
See § 974.06(1); State
v. Evans, 2004 WI 84, ¶33, 273
¶8 Munson’s
current claims relating to the plea colloquy, adequacy of his plea, and the circuit
court’s sentencing discretion were expressly raised, addressed, and adjudicated
in the no-merit appeal. As the circuit
court correctly noted, Munson may not re-raise those issues in a new Wis. Stat. § 974.06 motion. See Lo, 2003 WI 107, ¶23, 264
¶9 Munson’s
remaining claim is that postconviction counsel was ineffective for failing to
challenge trial counsel’s effectiveness.
To the extent this is a new claim, the circuit court ruled that new
claims were barred by Tillman because Munson had not
raised them in his no-merit response. See
Tillman, 2005 WI App 71, ¶27, 281
¶10 The
State concedes that, as a general legal principle, ineffective assistance of
postconviction counsel sometimes constitutes a sufficient reason for a
defendant’s failure to raise an issue in a prior motion or appeal.[2] See
Rothering,
205
(1) the Escalona/Tillman bar applies, and (2) Munson ultimately
cannot prevail on his ineffective-assistance claims.
¶11 We
agree with the State that the Escalona/Tillman bar applies. Appellate counsel specifically raised two
issues regarding trial counsel’s effectiveness in the no-merit report, to which
Munson could have responded or upon
which he could have elaborated. See
Escalona,
185
¶12 We
also agree that Munson fails to demonstrate ineffective assistance of
counsel. To prove ineffective
assistance, a defendant must show both that his attorney performed deficiently
and that counsel’s deficiency was prejudicial.
State v. Allen, 2004 WI 106, ¶26, 274
I. Motion to Suppress
¶13 Munson
first claims trial counsel was ineffective relative to a motion to suppress.[4] Munson had given incriminating statements to
police, detailing his involvement in the crimes charged. Trial counsel filed a motion to suppress on
January 14, 1998, asking the trial court “to review the mental, emotional and
physical state of the defendant at the time that the statements were taken[.]”[5] For whatever reason, the motion was never
heard.
¶14 The
State asserts that Munson has waived any challenge associated with the
suppression motion, as a valid guilty plea waives all non-jurisdictional
defects and defenses, including challenges based on alleged constitutional
violations.
¶15 To
be admissible, Munson’s statements to police had to be voluntary. See
State
v. Hoppe, 2003 WI 43, ¶¶33–36, 261
¶16 The
only improper police conduct Munson alleged was that “police were telling him
that unless he gave a statement he would be placed in prison.”[6] He complains this was coercive because he was
only seventeen years old and he was drunk at the time of his arrest. See
ibid.
(defendant’s mental status a factor in determining whether police conduct
improper). However, Munson’s allegation of
police coercion is vague and conclusory.
He does not allege any specific words spoken by any specific actors at
any particular time or in any particular place, nor does he allege how such a
statement by the police coerced him into giving his statements.
¶17 Munson’s
assertion that he was intoxicated at the time of his statements is likewise conclusory. The written statement noted that Munson denied
being under the influence of drugs or alcohol.
In his reply brief, Munson explains he did not tell police he was impaired
because he feared being in more trouble, but this is simply incongruous with a companion
notation that Munson admitted daily alcohol and marijuana use. Further, assuming Munson was intoxicated at
the time of his arrest, 7:30 p.m., the first statement-generating interview did
not begin until after midnight. Munson
alleges no facts that would establish his intoxication at the time of his
interview.
¶18 Assuming
Munson’s allegation of intoxication to be true, however, Munson does not allege
that he ever advised counsel of this intoxication “defense.” Based on the information available to trial
counsel in the written statement, counsel would have had no objective basis for
considering that intoxication might have been a factor that would render
Munson’s statements involuntary: “counsel
is not expected to be a mind-reader.”
¶19 Munson
does not allege sufficient facts to establish that his statements to police
were involuntary. He therefore cannot
establish a basis for the statements’ suppression, so any suppression motion
would have been denied. Trial counsel was
not deficient, nor was his performance prejudicial, for failing to pursue a
legal challenge that would have been rejected.
See Ziebart, 2003 WI App 258,
¶14, 268
II. Failure to Obtain Private Presentence
Investigation
¶20 Munson
also asserts that a private presentence investigation “would have shown the
circuit Court a more in depth view of the Defendant’s life …. The Defendant grew up with no father, and his
mother was a drug addict. The Defendant
was physically [and] emotionally abused, and as a young child, molested and
sexually assaulted by older women[.]” Munson
contends that counsel’s failure to obtain a private report meant that the
circuit court was “held blind” at sentencing.
Munson also appears to be claiming that a private report containing this
information would have shown he used alcohol “for escape.”
¶21 First,
Munson does not allege this information was not already before the circuit
court. While Munson asserts he has never
seen the presentence investigation report and, therefore, cannot argue
regarding what was or was not included, we know from the sentencing transcript that
trial counsel referred to his background as “sad[,]” as “… reflected in the
Presentence Report[.]” This reference
suggests that much of the background information Munson thinks a private
presentence investigation would have provided was already before the circuit
court.[7]
¶22 To
the extent Munson thought a private report would explain his drinking and
somehow demonstrate a mitigating factor, the circuit court disregarded any such
argument, noting Munson’s “meager excuse that it was alcohol is
ridiculous. It’s an attempt to pass
blame when it clearly falls on you.” Munson
also offers no explanation of how any information he thinks a private report
would have contained would have changed the circuit court’s sentencing decision. In any event, the court is under no
obligation to rely on a presentence investigation report. See
Bruneau
v. State, 77
III. Failure to Procure Character Witnesses
¶23 Munson
complains that trial counsel should have tracked down witnesses to testify
about Munson’s character at sentencing.
In his postconviction motion, he listed over a dozen people who could have
been called.[8] However, Munson has not alleged that he
provided these names to counsel, or that any
of these individuals would have agreed to testify on his behalf. Munson also fails to allege what they would
have said on his behalf. Indeed, one of
the witnesses Munson listed was his mother, who actually declined a chance to
testify at sentencing. While Munson
claims trial counsel had an obligation to investigate and find witnesses,
Munson has not established there were any willing witnesses to be found. Counsel cannot be deficient for failing to
find character witnesses where none appear to exist.[9]
SUMMARY
¶24 Certain
claims of error Munson raised in his Wis.
Stat. § 974.06 motion were expressly raised and adjudicated during
the no-merit appeal and cannot be re-raised now. Munson’s claims of ineffective assistance of trial
counsel are procedurally barred by Escalona and Tillman. The allegation of ineffective assistance of postconviction
counsel is relevant only insofar as it attempts to provide a “sufficient reason”
for Munson’s failure to previously raise ineffective-assistance-of-trial-counsel
claims. However, because Munson cannot show trial counsel actually was
ineffective, Munson’s claim of ineffective assistance of postconviction counsel
fails to serve as a “sufficient reason” for circumventing the procedural bar.
By
the Court.—Order affirmed.
This opinion will not be
published. See Wis. Stat. Rule
809.23(1)(b)5.
[1] Munson also pled no contest to one count of armed robbery in a companion case. That case is not at issue in this appeal.
[2] For
example, claims of ineffective assistance of trial counsel generally cannot be
reviewed on appeal unless preserved by postconviction motion.
[3] Our no-merit opinion in Munson’s appeal noted only that “our review of the record reveals no basis for a claim of ineffective assistance of [trial] counsel.” While presumably we reviewed Munson’s case for any and all possible ineffective-assistance claims, the specific issues appellate counsel raised in the no-merit report were whether trial counsel properly advised Munson of the consequences of his plea and Munson’s possible lack of confidence in counsel.
[4] At one point, Munson argues that counsel could have at least moved to suppress his statements—counsel did, in fact, make such a motion.
[5] The motion also alleged the statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), although Munson signed acknowledgements that he had been advised of, and was waiving, his Miranda rights.
[6] In
his brief, Munson alleges additional coercive measures, like putting him in a
holding cell with his codefendants to get them to fight, or giving Munson
cigarettes even though he was under eighteen.
However, we review only the allegations within the postconviction motion,
not any additional allegations in the brief.
State v. Allen, 2004 WI 106, ¶27, 274
[7] The presentence investigation report is not in the Record.
[8] The State asserted that Munson never identified the witnesses. Although the witnesses are not specifically indentified by name in the motion, there is a “witness list” as Record Item 74, which appears to have been submitted with the postconviction motion, despite its separate number.
[9] Munson
also claimed that trial counsel was ineffective for coercing his plea and for
failing to ensure his plea was knowing and voluntary. This court expressly concluded in the
no-merit opinion that the “record belies Munson’s assertion that he was
coerced” and, as noted, that there was no arguable merit to a challenge to the
plea’s validity. These claims cannot be
re-raised, no matter how Munson rephrases them.
See State v. Lo, 2003 WI 107, ¶23, 264