COURT OF APPEALS DECISION DATED AND FILED August 31, 2010 A.
John Voelker Acting 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 Nos. |
2009AP2277-CR |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Ricky L. Schmaling,
Defendant-Appellant. |
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APPEALS
from a judgment and an order of the circuit court for
Before
¶1 PER CURIAM. Ricky Schmaling appeals a judgment of conviction for two counts of felon in possession of a firearm and two counts of felony bail jumping, and an order denying postconviction relief. He claims: (1) his conviction is barred by double jeopardy; and (2) the circuit court erroneously denied his request for an adjournment. He also claims the circuit court should have held an evidentiary hearing on these issues. We conclude the record before us conclusively demonstrates Schmaling is not entitled to relief. Accordingly, we hold that the circuit court appropriately exercised its discretion when denying his postconviction motion without a hearing.
BACKGROUND
¶2 On November 17, 2005, police executed a search warrant for
Schmaling’s cabin in
¶3 The State subsequently filed the present action, charging Schmaling with, among other things, two counts of felon in possession of a firearm. The first possession count was supported by statements from Daniel Leahy, Schmaling’s brother-in-law, indicating that Schmaling fired a .22 caliber rifle during the summer of 2005. Others stated Schmaling was seen with a gun case the year before, which formed the basis for the second count. The State’s filing included a 1991 judgment of conviction for a class C felony. Schmaling pled not guilty.
¶4 On the day of trial, Schmaling requested that attorney Joseph Norby substitute for his original counsel. Although the State questioned whether Norby was sufficiently prepared, Norby assured the court he “came prepared to do [his] very best,” and noted his client wished to go ahead with the trial. After a short break in the pretrial proceedings, Norby requested an adjournment, arguing his preliminary review of Schmaling’s file caused him to question whether he could effectively try the case. The court recognized the “difficult circumstances,” but elected to go ahead with the trial. Schmaling was ultimately convicted of all the charged offenses.
¶5 In a postconviction motion, Schmaling argued double jeopardy precluded his conviction for felon in possession. He also claimed the circuit court’s failure to grant an adjournment denied him a fair trial and effective assistance of counsel. Schmaling did not attach relevant portions of the record from the earlier case to his motion, and instead requested a Machner hearing.[1] The circuit court did not act on the motion, and it was therefore deemed denied. See Wis. Stat. Rule 809.30(2)(i).[2]
DISCUSSION
¶6 We review a circuit court’s decision not to hold an
evidentiary hearing on a postconviction motion under a mixed standard. State v. Bentley, 201
¶7 The record before us conclusively demonstrates Schmaling is not entitled to relief. This is true for both Schmaling’s double jeopardy claim and his claim that the circuit court erroneously denied his adjournment request. Accordingly, an evidentiary hearing was unnecessary.
I. Double Jeopardy
¶8 “The first prong in a
double jeopardy inquiry is whether the multiple charges are identical in law
and in fact.” State v. Nommensen, 2007
WI App 224, ¶6, 305
¶9 Our
first task is to determine whether Schmaling was subject to multiple charges that
were identical in law and fact. In his
postconviction motion, Schmaling claims his current convictions cannot stand
because he was previously acquitted of possessing a firearm. The circuit court could not, nor can this
court, ascertain the circumstances surrounding the acquittal because
Schmaling’s postconviction motion does not include any pertinent record
evidence from the earlier case. Although
the court could have ordered an evidentiary hearing on these matters, we see no
point in requiring the circuit court to do so where the pertinent evidence can
be introduced through other, more efficient means.
¶10 Schmaling’s
failure to include record evidence from the prior case also frustrates our
ability to review the circuit court’s action.
We have repeatedly emphasized the importance of having all of the facts
in the record for purposes of review. See,
e.g., State v. Van Meter, 72
¶11 There
is no question the charges are identical in law; Schmaling’s allegations are
mostly directed to whether the charges are identical in fact. According to Schmaling’s motion, his
previous acquittal involved allegations that he possessed a firearm “on or
about November 18, 2005,” a day after his cabin was searched. In the current case, Schmaling was accused of
separately possessing firearms between November 20 and 28, 2004, and again on
September 3, 2005. Schmaling’s motion argued the charges in the
current case are multiplicitous because the State used the same 1991 judgment
of conviction to prove he was a felon, and the same guns were admitted into evidence
at both trials. In essence, he claims
his possession of the firearms between November 20, 2004 and November 18,
2005, represented one “continuous offense” for which he could not be twice
prosecuted.
¶12 “Charged offenses are not multiplicitous if the facts are
either separate in time or of a significantly different nature.” Nommensen, 305
¶13 In his prior case, the State was unable to prove Schmaling
knowingly possessed the guns on the date of their seizure. In this case, the State proved that Schmaling
possessed firearms on two reasonably specific dates before the search warrant
was executed. We cannot conclude, on
this record, that the three discrete acts of possession represent one
continuing offense. Each act occurred on
a different date[4]
and presumably represented a “new volitional departure in the defendant’s
course of conduct.” See Anderson, 219
II. Denial of
Schmaling’s Adjournment Request
¶14 Schmaling asserts he was denied due process and effective
counsel because the trial court denied his motion for a continuance. The decision to grant or deny a continuance
is a matter within the circuit court’s discretion. State v. Wollman, 86
¶15 However, it is not necessary for us to decide whether the
circuit court erred in denying Schmaling’s continuance request. “A party who appeals the denial of a motion
for a continuance must demonstrate that he or she suffered prejudice from the
adverse ruling.” L.M.S. v. Atkinson, 2006
WI App 116, ¶19, 294
¶16 Schmaling asserts a continuance would have allowed him to obtain a crime lab report indicating that the guns “contained no latent prints suitable for comparison.” The crime lab evidence Norby might have introduced does not create a reasonable probability of a different outcome. In his closing argument at trial, Norby noted the State had not produced fingerprint evidence connecting Schmaling to the guns. Moreover, the absence of fingerprints on the guns in November 2005 does not undermine witness testimony that Schmaling handled the weapons in November 2004 and September 2005.
¶17 Schmaling also suggests that, with more preparation time, Norby could have obtained documentary evidence supporting the testimony of Susan Ertl that she purchased one of the seized guns for herself. Ertl’s ownership, however, was never disputed by the State, rendering the further ownership evidence unnecessarily duplicative. In addition, supplementary evidence that Ertl owned the gun does not prove Schmaling never used it. Accordingly, Schmaling has failed to show prejudice flowing from the circuit court’s decision to promptly try the case.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1]
[2] All references to the
[3] Schmaling does not argue this point, and
we therefore assume, without deciding, the legislature did not intend multiple
violations of the felon in possession statute to be brought in a single
count. See State v. Pettit, 171
[4] Though Schmaling correctly observes the
date a felon possessed firearms is not an element of the offense, it, like
venue, must be proven beyond a reasonable doubt. See
State
v. Nommensen, 2007 WI App 224, ¶10, 305