COURT OF APPEALS DECISION DATED AND FILED July 15, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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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 IV |
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State of
Plaintiff-Respondent, v. Oliver Pentinmaki,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Dykman, P.J., Lundsten and Higginbotham, JJ.
¶1 PER CURIAM. Oliver Pentinmaki appeals a judgment, entered after a jury verdict, convicting him of four counts of failure to support a child for more than 120 days, contrary to Wis. Stat. § 948.22(2) (1999-2000).[1] Pentinmaki also appeals the order denying his motion for postconviction relief. Pentinmaki argues that the circuit court erroneously exercised its discretion by admitting other acts evidence. Pentinmaki also claims that his counsel was ineffective for failing to object to what he describes as other inflammatory evidence and testimony. Finally, Pentinmaki contends that he is entitled to a new trial in the interest of justice. We reject these arguments and affirm the judgment and order.
Background
¶2 In June 2001, the State charged Pentinmaki with four counts of failing to provide child support to his minor children during periods encompassing January 1, 2000, to May 22, 2001. An arrest warrant was issued, and Pentinmaki was ultimately arrested in October 2006. The matter was set for trial. Prior to jury selection, the court heard arguments regarding the admissibility of other acts evidence that the State sought to introduce: (1) Pentinmaki’s 1992 conviction for failure to pay child support, arising from the same court-imposed support obligation; (2) records showing Pentinmaki was making payments for a period of time, but then stopped; and (3) evidence of Pentinmaki’s failure to appear at a 1999 contempt and motion hearing, along with evidence of his eventual arrest on a cruise ship in 2006.
¶3 The court ultimately admitted all of the proffered evidence, except that of Pentinmaki’s cruise ship arrest. With respect to the arrest, the court concluded that it was irrelevant unless Pentinmaki opened the door with an inability-to-pay defense.
¶4 At trial, the State presented three witnesses: Wayne Pfister, Clare Altschuler, and
Pentinmaki’s ex-wife, Mary Volker.
Pfister, a
¶5 Volker testified that she and Pentinmaki were married on May 2, 1981, and had two sons during the marriage—Oliver (born April 16, 1983) and Robert (born April 23, 1985). Volker further testified that she and Pentinmaki divorced in October 1990, and that Pentinmaki was ordered to pay $1250 in monthly child support. Although Volker could not remember exactly when payments stopped, she believed it was around September 29, 1999. Volker, however, confirmed that she received no payments during the four charged periods of the complaint. Pentinmaki did not testify at trial and did not present any witnesses. During closing arguments, defense counsel argued that Volker’s inability to remember exactly when payments ceased established reasonable doubt as to Pentinmaki’s alleged failure to pay during the charged periods.
¶6 Pentinmaki was convicted upon the jury’s verdicts, and the court imposed consecutive sentences totaling four years of initial confinement followed by one year of extended supervision. Pentinmaki filed a motion for postconviction relief alleging ineffective assistance of trial counsel and alternatively seeking a new trial in the interest of justice. The court denied Pentinmaki’s motion for postconviction relief, and this appeal follows.
Discussion
¶7 The court must engage in a three-step analysis to determine
the admissibility of other acts evidence.
State v. Sullivan, 216
¶8 Here, Pentinmaki claims the circuit court failed to properly
consider the third step of the Sullivan analysis—balancing
prejudice against probative value. Our
supreme court has recognized that “similarities between the other crimes
evidence and the charged crime may render the other crimes evidence highly
probative, outweighing the danger of prejudice.” State v. Davidson, 2000 WI 91, ¶75,
236
¶9 Next, Pentinmaki argues that his trial counsel was
ineffective for failing to object to what he describes as other inflammatory
testimony and evidence. To establish
ineffective assistance of counsel, Pentinmaki must show that his counsel’s
performance was not within the range of competence demanded of attorneys in
criminal cases and that the ineffective performance affected the outcome of the
trial. Strickland v.
¶10 In order to establish deficient performance, a defendant must
show that “counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
¶11 The prejudice prong of the Strickland test is
satisfied where the attorney’s error is of such magnitude that there is a
reasonable probability that, absent the error, the result of the proceeding
would have been different.
¶12 Here,
Pentinmaki challenges his counsel’s failure to object to evidence showing the
following: (1) that Pentinmaki
unsuccessfully moved for a stay of the divorce judgment and failed in his
appeal of that judgment; (2) the verbatim contents of the order denying
Pentinmaki’s motion to stay maintenance and support; (3) that Pentinmaki had
been placed on probation following his 1992 conviction for failure to support;
(4) that Pentinmaki’s failure to appear at a contempt hearing resulted in the
issuance of an arrest warrant; and (5) that the judge at the scheduled contempt
hearing was “quite angry” when Pentinmaki failed to appear. As noted above, given the other evidence of
Pentinmaki’s guilt, we are not convinced that any of the claimed deficiencies by
trial counsel affected the outcome at trial.
¶13 Alternatively, Pentinmaki seeks a new trial under Wis. Stat. § 752.35, which permits
us to grant relief if we are convinced “that the real controversy has not been
fully tried, or that it is probable that justice has for any reason
miscarried.” Pentinmaki invokes the
first basis for relief, that the real controversy was not fully tried. In order to establish that the real controversy
has not been fully tried, Pentinmaki must convince us “that the jury was
precluded from considering ‘important testimony that bore on an important
issue’ or that certain evidence which was improperly received ‘clouded a
crucial issue’ in the case.” State
v. Darcy N.K., 218
¶14 Here, Pentinmaki suggests that the admission of “unduly
prejudicial evidence” so clouded a crucial issue that it may fairly be said
that the real controversy was not fully tried.
Specifically, Pentinmaki argues that the cumulative effect of the
prejudicial evidence (both challenged and unchallenged by his attorney), combined
with the repetitive presentation of that evidence by multiple witnesses,
inappropriately invited the jury to punish him.
As discussed above, any error in the admission of the challenged
evidence was harmless in this case.
Adding the evidence together adds nothing. “Zero plus zero equals zero.” Mentek v. State, 71
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All further references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.