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COURT OF APPEALS DECISION DATED AND FILED November 16, 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 III |
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State of
Plaintiff-Respondent, v. Ronald Helmut Wagner,
Defendant-Appellant. |
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APPEAL from a judgment and an order of the
circuit court for
Before
¶1 PER CURIAM. Ronald Wagner appeals a judgment convicting him of second-degree sexual assault and an order denying his motion for postconviction relief. Wagner argues the trial court improperly denied his requests for substitution of judge and recusal and denied him his constitutional right of self‑representation. Wagner also argues the State violated his right to due process by destroying and suppressing evidence favorable to him. Additionally, Wagner contends he received ineffective assistance from his trial attorneys. Finally, Wagner urges us to exercise our power of discretionary reversal, pursuant to Wis. Stat. § 752.35.[1] We reject Wagner’s arguments and affirm.
BACKGROUND
¶2 An Information charged Wagner with second-degree sexual
assault. At trial, Christopher Rosenberg
testified that on August 8, 2004, he and Wagner were inmates in the St. Croix
County Jail. At 6:30 p.m., the other
inmates in their cell block went to church services, leaving Rosenberg and
Wagner alone.
¶3 Three days later, Sheila Pelzel, a sexual assault nurse,
examined
¶4 The jury found Wagner guilty of second-degree sexual assault. Wagner received a twenty-two year sentence, consisting of twelve years’ initial confinement and ten years’ extended supervision.
¶5 On July 18, 2005, Wagner, pro se, filed a motion to compel postconviction discovery and a motion to dismiss the case with prejudice or for a new trial. Wagner alleged ineffective assistance of counsel, failure by the State to provide discovery and preserve exculpatory evidence, denial of witnesses, presentation of false or perjured testimony, failure to hear a petition for writ of habeas corpus prior to sentencing, denial of equal protection, and newly discovered evidence. The court delayed consideration of Wagner’s pro se motions after postconviction counsel was appointed for him. On August 26, 2005, Wagner again filed postconviction motions, alleging that his trial attorneys were ineffective and that the trial court erroneously exercised its discretion and violated his right to self-representation. After an evidentiary hearing, the trial court denied Wagner’s requests for postconviction relief.
¶6 Wagner filed a notice of appeal. Wagner’s appellate counsel subsequently moved this court to withdraw, on the grounds that Wagner wanted to proceed pro se. After Wagner advised us that he desired to represent himself, we granted counsel’s motion to withdraw and ordered Wagner to file his appellate brief by June 12, 2006. On July 5, 2007, we granted Wagner’s motion to dismiss his appeal and reopen his postconviction rights, after Wagner argued he needed to supplement his postconviction motion with issues his counsel had failed to raise.
¶7 Following remittitur, Wagner filed a demand for substitution of trial judge, citing Wis. Stat. § 801.58(7) for the proposition that he had “twenty (20) days from the date of the remittitur to request a substitution of judge ….” He also argued the trial judge was required to recuse himself because he had “become a witness in the returning action, as he was directly involved in the denial of Wagner’s right to proceed pro se prior to trial.” The trial court denied Wagner’s request for substitution or recusal.
¶8 On December 10, 2007, Wagner filed a supplemental postconviction motion, which the trial court denied after evidentiary hearings. Wagner now appeals the judgment of conviction and the order denying his supplemental motion for postconviction relief.
DISCUSSION
I. Substitution/recusal of trial
judge
¶9 Wagner first argues the trial court improperly denied his request for substitution of trial judge. Wagner cites Wis. Stat. § 801.58(7) for the proposition that he was entitled to request substitution within twenty days from the date of remittitur. Subsection 801.58(7) provides:
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1) within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken. (Emphasis added.)
¶10 Wagner’s reliance on Wis. Stat. § 801.58(7) is misplaced. The statute clearly states that a substitution of judge may be requested when an appellate court (1) orders a new trial, or (2) reverses or modifies a judgment or order in a manner such that further proceedings in the trial court are necessary. Prior to Wagner’s request for substitution, we did neither. We merely granted Wagner’s request for voluntary dismissal of his first appeal and reinstated his postconviction rights. Our intent was to allow Wagner to raise additional issues that his postconviction counsel had neglected, so as to “avoid a piecemeal appeal.” Therefore, Wagner was not entitled to request substitution of trial judge under Wis. Stat. § 801.58(7).
¶11 Wagner also argues the trial judge was required to recuse himself following remittitur because he had “become a material witness in the case.” Wagner contends that the trial court, by requiring Wagner to retain counsel, became a material witness on the issue of whether Wagner’s constitutional right of self-representation was violated. The trial judge refused to recuse himself, finding that “the issues raised by [Wagner] regarding his ability to proceed pro se are a matter of record and can be decided based on the record.”
¶12 Wisconsin Stat. § 757.19(2)(b)
provides that a judge “shall disqualify himself or herself from any civil or
criminal action” if he or she is “a party or a material witness ….” The interpretation of § 757.19(2)(b) is
a question of law that we review independently.
¶13 Wisconsin Stat. § 757.19(2)(b)
did not require the trial judge to recuse himself in this case. The fact that a judge hears and sees events
occurring in the courtroom does not transform the judge into a “witness.” In Hampton, 217
A trial court’s observations are inherent to its role as presiding judge. The trial court, as a matter of course, considers the demeanor of witnesses in making its legal and factual rulings. The trial court sees and hears everything that occurs before it. The fact that the trial court, in a technical sense, “witnesses” the actions of the jurors, the testifying witnesses, the lawyers and the parties does not transform the trial court into a “material witness” pursuant to § 757.19(2)(b), Stats.
The trial court remains the judge, presiding over the
proceeding and making rulings based on the evidence and argument before it. Although judicial rulings may be grounds for
appeal, they do not necessarily form the basis for recusal. See Liteky
v.
Thus, § 757.19(2)(b) did not require the trial judge in this case to recuse himself, because he was not a “witness” at all. The judge’s decision to appoint counsel for Wagner did not make him a “material witness” when Wagner later challenged that decision in a postconviction motion. Rather, he continued in his role as presiding judge, ruling on Wagner’s motion based on the record.
II. Right to self-representation
¶14 Wagner next argues the trial court violated his right to self-representation
by requiring him to retain an attorney to represent him at trial. Both the
¶15 However, a defendant’s waiver of the constitutional right to
counsel does not trump the inherent power of the trial court to appoint
counsel. State v. Lehman, 137
¶16 Wagner claims that after the trial court ruled it would allow him to proceed pro se, it impermissibly terminated his right to self-representation by requiring him to retain Attorney Sonderhouse as trial counsel. Wagner had planned to use Sonderhouse as a “consultant” during the trial. However, Wagner argues that the trial court, rather than appointing Sonderhouse as standby counsel, “required Sonderhouse to file a Notice of Retainer … and Sonderhouse was informed that Wagner could not represent himself, even though [Sonderhouse] was to act as standby counsel.”
¶17 The record belies Wagner’s contentions. At a January 13, 2005 hearing, the trial court noted that Wagner had waived his right to an attorney, but the court nevertheless sought to appoint standby counsel because it was concerned about “legal procedures” during the trial. The following exchange then took place between the court and attorney Dunlap, counsel from the public defender’s office:
MR. DUNLAP: Mr. Wagner has advised me that he has retained counsel, that his attorney is intending to be here on Tuesday for the trial on Wednesday and Thursday. The attorney’s name – can I have permission to tell the judge?
MR. WAGNER: (Indicating)
MR. DUNLAP: – is Attorney Ronald
Sonderhouse from
THE COURT: Okay.
MR. DUNLAP: And I’ve called Mr. Sonderhouse’s office. I have been advised by his secretary that she was aware of negotiations that had been taking place between Mr. Wagner and Mr. Sonderhouse, but she wasn’t aware if those negotiations concerning the retainer, I imagine, have been finalized, and that I needed to talk to Mr. Sonderhouse.
Mr. Wagner says that – he’s advised me that those retainer negotiations have been finalized as of yesterday and that Mr. Sonderhouse had been giving him some advice over the phone, and that was being used by him at this hearing, I believe, that the Court had yesterday.
So I’m telling the Court, with Mr. Wagner’s permission, that he has retained an attorney who is ready to be representing him on Wednesday. (Emphasis added.)
Thus, after the trial court made the discretionary decision to appoint standby counsel for Wagner, Dunlap informed the court that Wagner had “retained” Sonderhouse to represent him at trial. Dunlap made this representation in Wagner’s presence, and Wagner did not dispute it. As a result, Wagner cannot now complain that the court violated his right to self-representation by allowing Sonderhouse to represent him at trial.
III. Destruction of evidence
¶18 Wagner next argues the State violated his right to due process
by failing to preserve evidence. A
defendant’s due process rights are violated if the State: “(1) failed to preserve evidence that is
apparently exculpatory; or (2) acted in bad faith by failing to preserve
evidence which is potentially exculpatory.”
State v. Greenwold, 189
¶19 Wagner argues the State failed to collect evidence of the sexual assault for three days and destroyed recordings of phone calls made from the St. Croix County Jail. However, despite pages of elaborate argument, Wagner fails to explain adequately why this evidence would have been exculpatory. Wagner has not shown that the evidence would have had any bearing on the outcome of the trial. We agree with the trial court that “Wagner speculates only what the alleged evidence might have shown; a far cry from exculpatory.”
¶20 Even if the evidence were potentially exculpatory, Wagner has not shown that the State acted in bad faith by failing to preserve it. Wagner has not presented any evidence that the State acted in bad faith by failing to conduct a sexual assault examination of Rosenberg until three days after the alleged assault. Nor has Wagner presented any evidence that the State acted in bad faith by failing to preserve recordings of phone calls made from the St. Croix County Jail during August 2004. According to sheriff Dennis Hillstead, the jail switched phone service providers on October 3, 2006, resulting in a loss of all phone calls recorded before that date. Hillstead testified that it was his decision to change the jail’s phone service provider and that he was unaware that the change would result in the loss of any recordings. Wagner has not presented any evidence that Hillstead’s decision to change phone providers was in any way motivated by a bad faith desire to destroy evidence.
IV. Failure to disclose evidence
¶21 Wagner next contends that the State suppressed evidence
favorable to him and that the result of his trial would have been different had
the State disclosed the evidence. Under
the Fourteenth Amendment, “suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” Brady
v.
¶22 Wagner argues the State violated his right to due process by failing to disclose previous statements and recorded phone calls made by Rosenberg, probation and parole records, jail movement records, and police reports. However, Wagner has wholly failed to show that any of this evidence would have been material to his case. Much like his destruction of evidence claim, Wagner has not demonstrated a reasonable probability that the evidence the State allegedly failed to provide would have changed the outcome of his trial. We agree with the trial court that “even if there were any nondisclosure, [Wagner] was not deprived of a fair trial.”
V. Ineffective assistance of
counsel
¶23 Wagner further contends all three of his trial attorneys were
ineffective. An ineffective assistance
of counsel claim presents a mixed question of fact and law. State v. Erickson, 227
¶24 To establish ineffective assistance of counsel, a defendant
must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defendant. Strickland
v.
¶25 Wagner alleges that his first trial counsel, attorney Lamb, was ineffective by failing to: (1) interview “various witnesses;” (2) request state public defender hours for a private investigator hired by Wagner; (3) file any discovery motion; and (4) provide his file to Wagner’s next attorney. Lamb only served as Wagner’s attorney for a brief period of about two months. That Lamb did not interview witnesses or file a discovery motion during that short time does not constitute deficient performance. Furthermore, Lamb testified that he did not request state public defender hours for Wagner’s private investigator because Wagner “indicated that [his] family would pay [her].” Lamb also testified that he hand-delivered his file to Wagner’s next attorney. Like the trial court, we conclude Lamb’s performance was not deficient. Additionally, Wagner has failed to demonstrate how any of Lamb’s allegedly deficient acts prejudiced him. As a result, we conclude Wagner did not receive ineffective assistance from Lamb.
¶26 Wagner next argues his second trial counsel, attorney Schutte, was ineffective by failing to: (1) file a motion to compel production of Lamb’s file; (2) request state public defender hours for Wagner’s private investigator; (3) write a letter allowing Wagner’s private investigator to interview inmates in the St. Croix County Jail; (4) review a surveillance DVD of Rosenberg; and (5) obtain and review phone call recordings from the jail. Even accepting that Schutte failed to do these things, we cannot find that he was ineffective. Again, Wagner has failed to demonstrate how Schutte’s conduct prejudiced him. Thus, like the trial court, we conclude Wagner did not receive ineffective assistance from Schutte.
¶27 Wagner also contends his third trial counsel, attorney Sonderhouse, was ineffective in a number of respects. For instance, Wagner alleges Sonderhouse performed deficiently by failing to listen to each of the recorded phone calls from the St. Croix County Jail. However, Sonderhouse testified he listened to all the phone calls Wagner provided to him. Sonderhouse’s performance in this respect was not deficient.
¶28 Wagner also contends Sonderhouse was ineffective by failing to
procure the attendance of “many witnesses” at trial, specifically inmates who would
have testified that Rosenberg made up the sexual assault allegations. Sonderhouse did procure the testimony of one
inmate, Jess Camm, who testified that
¶29 Wagner also argues Sonderhouse was ineffective by failing
to: (1) obtain Lamb or Schutte’s
files; (2) review a surveillance DVD from the jail; (3) obtain
VI. Discretionary reversal
¶30 Wagner finally asks us to exercise our power of discretionary
reversal pursuant to Wis. Stat. § 752.35,
which permits us to reverse a judgment or order when the real controversy has
not been fully tried or when it is probable that justice has for any reason
miscarried. “We exercise our
discretionary reversal power only sparingly.” State v. Prineas, 2009 WI App 28, ¶11,
316
¶31 Wagner argues that “[t]he same prejudice that resulted from the
suppression of evidence and ineffectiveness [of counsel] resulted in the real
issue of whether Wagner sexually assaulted
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.