COURT OF APPEALS DECISION DATED AND FILED November 9, 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 No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Robert L. Canady, Defendant-Appellant. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Kessler and Brennan, JJ.
¶1 PER CURIAM. Robert L. Canady, pro se, appeals from orders denying his
postconviction motions, filed under Wis.
Stat. § 974.06 (2007‑08)[1]
and State
ex rel. Rothering v. McCaughtry, 205
Background
¶2 In February 2003, following a jury trial, Canady was convicted of first-degree intentional homicide as a party to a crime, with use of a dangerous weapon. He was sentenced to life in prison with eligibility to petition for release to extended supervision on May 10, 2042.
¶3 Canady subsequently took a direct appeal claiming that his confession was either part of a polygraph examination and was inadmissible or was involuntary and should have been suppressed. We affirmed his conviction. See State v. Canady, No. 2006AP1000-CR, unpublished slip op. (WI App Mar. 13, 2007).
¶4 In June 2008, Canady, pro
se, filed a Wis. Stat. § 974.06
motion alleging that pursuant to Rothering, postconviction counsel’s
ineffectiveness constituted a sufficient reason for his failure to previously
raise the issues addressed in the motion.
Canady’s claims were based on postconviction counsel’s failure to
challenge trial counsel’s decision not to file a motion to suppress on the
basis of an illegal search and seizure and postconviction counsel’s failure to
argue that his sentence violated Apprendi. The postconviction court denied Canady’s
second claim on its face after concluding that the Apprendi holding “is not
applicable to a sentence which is not governed by mandatory sentencing
guidelines, such as
¶5 Canady sought reconsideration on the Apprendi claim, which was denied. Meanwhile, the postconviction court granted Canady a Machner hearing regarding the suppression issue. Canady requested that counsel be appointed to represent him for purposes of the hearing. The postconviction court never addressed Canady’s motion for the appointment of counsel, and he proceeded pro se.
¶6 At the Machner hearing, Canady’s postconviction counsel, Attorney Provis, and his trial counsel, Attorney Backes, testified. Based on the testimony presented, the postconviction court denied Canady’s remaining postconviction claim. Canady now appeals from both the order denying his claim regarding the suppression issue and the order denying his claim based on Apprendi.
Analysis
I. Ineffectiveness
of postconviction counsel for failing to challenge trial
counsel’s decision not to pursue a suppression motion.
¶7 A claim of ineffective counsel is a constitutional issue,
which is cognizable under Wis. Stat. § 974.06. See State v. Ludwig, 124
¶8 Claims of ineffective assistance of trial counsel must be
raised in the trial court in a postconviction motion prior to a direct
appeal. See Wis. Stat. Rule
809.30(2)(h). Therefore, postconviction
counsel’s failure to raise ineffective assistance of trial counsel may present
a “sufficient reason” to overcome the Escalona procedural bar. See
Rothering,
205
¶9 To prevail on a claim of ineffective assistance of trial
counsel, Canady must show that counsel was deficient and that the deficiency
prejudiced his defense. See State
v. Mayo, 2007 WI 78, ¶33, 301
¶10 To prove deficiency, a defendant must demonstrate that
counsel’s conduct falls below an objective standard of reasonableness. Strickland v.
¶11 Ineffective assistance claims present us with mixed questions
of fact and law. See Mayo, 301
¶12 Canady claims his trial counsel, Attorney Backes, was ineffective for failing to file a motion to suppress the murder weapon based on an alleged violation of Canady’s Fourth Amendment rights. Because it is dispositive, we turn directly to the prejudice prong of the ineffective assistance analysis. Even if we accept Canady’s proposition that Attorney Backes’s performance was deficient, we conclude that he was not prejudiced by counsel’s conduct. We agree with Canady’s postconviction counsel’s, Attorney Provis’s, assessment, offered during the Machner hearing, that even if the gun seized during the search had been suppressed, it is unlikely that a jury would have acquitted Canady in light of the overwhelming evidence against him, which included the victim’s identification of “Bill” (the name Canady goes by) as the shooter and Canady’s confession. Consequently, Canady’s ineffective assistance of trial counsel argument lacks merit. Because trial counsel was not ineffective, postconviction counsel was not ineffective for failing to raise trial counsel’s performance as an issue. Canady therefore cannot use Rothering to circumvent the dictates of Wis. Stat. § 974.06 and Escalona, and the postconviction court properly denied Canady’s present § 974.06 motion.
¶13 We briefly address Canady’s argument that because the trial
court failed to issue a ruling on his motion seeking the assistance of counsel
for the Machner hearing, he was denied the opportunity to conduct a
meaningful and adequate evidentiary hearing.
While the State correctly points out that Canady had no constitutional
right to counsel in a postconviction proceeding under Wis. Stat. § 974.06, see
State
ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 649, 579 N.W.2d 698 (1998),
the State otherwise fails to respond to Canady’s claim that the postconviction
court erred when it “fail[ed] to even acknowledge, let alone address” his
motion, see State v. Lehman, 137 Wis. 2d 65, 76, 403 N.W.2d 438 (1987) (“The
trial court has the authority to appoint counsel whenever in the exercise of
its discretion it deems such action necessary.”). Canady, however, did not bring the issue of
his motion for the appointment of counsel to the postconviction court’s
attention at any point prior to or during the Machner hearing. Instead, he acquiesced to proceeding pro se, and consequently, we deem this
issue forfeited. See generally State v. Schmaling,
198 Wis. 2d 756, 762, 543 N.W.2d 555 (Ct. App. 1995) (concluding defense
acquiescence acts as waiver); see
generally State v. Ndina, 2009 WI 21, ¶¶29-30, 315 Wis. 2d 653, 761
N.W.2d 612 (distinguishing forfeiture from waiver, noting that the former is
the failure to make the timely assertion of a right, while the latter is the
intentional relinquishment or abandonment of a known right).
II. Ineffectiveness of postconviction
counsel for failing to argue that Canady’s
sentence was violative of Apprendi.
¶14 Canady next asserts that postconviction counsel gave him
ineffective assistance by failing to argue that his sentence violated the Apprendi
doctrine and that the postconviction court erred when it denied his
claim without holding a hearing. Under Apprendi,
other than the fact of a prior conviction, the trial court may not find “any
fact that increases the penalty for a crime beyond the prescribed statutory
maximum.”
¶15 Canady was sentenced to life in prison, with eligibility for release to extended supervision on May 10, 2042, which was double the statutory minimum. See Wis. Stat. § 973.014(1g)(a)1., 2. In his postconviction motion, Canady challenges the following statement made by the sentencing court: “She was slick‑talking you, and she called you a bitch-ass nigger, and then you killed her. That’s what it comes down to.” Canady argues that this amounted to fact finding and that the jury should have had an opportunity to assess the provocation that the victim’s words could invoke in a person. To further support his argument, Canady quotes the sentencing court’s statement:
The public has to understand that human life is worth more than most people on the street believe it [i]s. It’s one of those situations that shows us that things in our community, things in this world have gotten so far out of hand where human life is just put on the bottom of the run[g] of important things. She called you a bitch-ass nigger, so she has to die.
¶16 Whether Canady’s postconviction motion alleges sufficient facts
entitling him to a hearing is subject to a mixed standard of review. See State v. Allen, 2004 WI 106, ¶9,
274
¶17 At the time of his conviction, Canady faced a statutory maximum
sentence of life imprisonment. See Wis.
Stat. §§ 939.50(3)(a), 940.01(1) (2001-02). The court sentenced him to the statutory maximum;
it did not exceed it. Consequently, nothing
in Apprendi
renders Canady’s sentence improper in any way.
Cf. State v. Montroy, 2005 WI
App 230, ¶¶23-24, 287
¶18 Further, the facts that Canady relies on to show that the sentencing court committed an Apprendi violation were made during the court’s consideration of his character and the need to protect the public—two of the primary sentencing factors courts are to consider. See State v. Gallion, 2004 WI 42, ¶¶23, 59-61, 270 Wis. 2d 535, 678 N.W.2d 197 (identifying three primary sentencing factors: (1) the gravity of the offense; (2) the character of the defendant; and (3) the need to protect the public). Canady has not pointed to anything in the sentencing analysis that amounts to new fact finding in violation of Apprendi; instead, the court simply characterized the facts presented at trial in the context of its analysis of the sentencing factors to arrive at a sentencing decision.
¶19 Finally, the federal cases on which Canady relies, including Cunningham
v. California, 549 U.S. 270 (2007), are distinguishable given the
advisory nature of Wisconsin’s sentencing guidelines. See id. at 292 (“
“If the [federal] Guidelines as currently written could be read as merely provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.”
Montroy, 287
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2]
[3] In State v. Tiepelman, 2006 WI 66, ¶31, 291 Wis. 2d 179, 717 N.W.2d 1, our supreme court withdrew language from State v. Montroy, 2005 WI App 230, 287 Wis. 2d 430, 706 N.W.2d 145, regarding the test to be applied in a motion for resentencing based on a court’s alleged reliance on inaccurate information. Because Montroy was not overruled, it retains precedential value for our purposes. See State v. Harris, 2010 WI 79, ¶34 n.12, __Wis. 2d __, 786 N.W.2d 409 (“Only when a case is overruled does it lose all of its precedential value.”).
[4] Canady faults the State for writing in its brief that Canady brought prior postconviction motions in this matter. According to Canady, the underlying Wis. Stat. § 974.06 collateral postconviction motion is the only postconviction litigation in this matter. The record belies Canady’s assertion. In a postconviction motion filed on August 6, 2004, Canady, through his appointed counsel, moved the court for an order granting a new trial on the ground of ineffective assistance of trial counsel based on an alleged failure to investigate potential defense witnesses. In the alternative, Canady moved for a new trial in the interest of justice. The postconviction court denied this motion on October 20, 2004.