COURT OF APPEALS DECISION DATED AND FILED January 12, 2011 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 II |
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State of
Plaintiff-Respondent, v. Jeffrey Edward Olson,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
Before Neubauer, P.J.,
¶1 PER CURIAM. A jury convicted Jeffrey Edward
Olson of three counts of second-degree sexual assault of two family members
when the victims were minors. Olson
appeals pro se from the judgment of conviction and from the order denying his
motions for postconviction relief after hearing held pursuant to State
v. Machner, 92
¶2 This Waukesha county case is intertwined with
¶3 The Waukesha
¶4 On April 10, Olson filed four pro se motions. A month later, the public defender’s office appointed the first of a series of attorneys to represent him. More facts will be supplied as necessary.
Right to Self-Representation
¶5 Olson first contends that he was denied his right to
represent himself and that his defense was irreparably harmed by the succession
of attorneys “forced” on him by the State and the court. The Sixth Amendment impliedly guarantees the right
to represent oneself. See State v. Darby, 2009 WI App 50, ¶16,
317
¶6 Olson contends he “clearly demonstrated” his wish to proceed pro se in April 2007 when he filed his first pro se motions. On these facts, we disagree. Olson filed those motions while still unrepresented but accepted the counsel appointed for him soon after. When that appointment was withdrawn due to the lawyer’s noncompliance with CLE requirements, Olson wrote the court asking it “to allow me to represent myself” and enclosing several more pro se motions. That request, however, was embedded in a letter of apology to the court for an apparent outburst sparked by learning of his lawyer’s disqualification.
¶7 In addition, Olson did not protest the appointment of new counsel, Attorney Michael Jakus, the very next day. Indeed, Olson expressly told the court that he had filed the pro se motions to protect his rights. The court replied, “Very good. Listen to my question. Do you want to proceed in this case with Mr. Jakus as your attorney?” Olson answered, “Yes.”
¶8 Jakus later moved to withdraw. At the hearing on the motion, the court advised Olson:
All right. There’s a reason that I’m appointing an attorney to represent you. This is a serious case. The State is represented by a very experienced prosecutor. Mr. Jakus notes that some of the problems and concerns he has in representing you is your filing of motions … If you need to—it’s your right to represent yourself if you want to, sir, but you need to listen and take advantage of the opportunity to have an attorney.
Olson did not indicate that he wished to proceed pro se. New counsel Donna Kuchler represented Olson throughout trial and sentencing. Olson did not protest her appointment or raise the subject of going pro se again until postconviction.
¶9 We conclude that, in the face of his other actions, Olson’s filing pro se motions did not clearly and unequivocally declare his wish to proceed pro se. He was not denied the right to represent himself.
Other-Acts Evidence and Double Jeopardy
¶10 The trial court permitted evidence to be introduced relating to
Olson’s sexual assault of one victim and his attempted sexual contact with the
other when they were living in
¶11 Other-acts evidence may be used when offered for proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident. Wis. Stat. § 904.04(2). Whether Olson’s double jeopardy guarantees were
violated is a question of law that we review de novo. See State v. Gruetzmacher, 2004 WI 55,
¶15, 271
¶12 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
¶13 The trial court found that despite the incidents’ similar time
frame, their occurrence and prosecution involved two separate geographic units. Conduct occurring in different counties necessarily
occurs at different times and thus represents the requisite “new volitional
departure” in Olson’s course of conduct.
See Nommensen, 305
¶14 Olson also looks to the doctrine of issue preclusion, which bars
the relitigation of issues that have actually been decided in a previous case
between the same parties. See id., ¶19. The
Speedy Trial
¶15 Olson was arrested in March 2006 but, due to initial uncertainty about the strength of some of the proof, a charging decision was not made until March 29, 2007. On April 10, 2007, Olson filed a pro se demand for a speedy trial pursuant to Wis. Stat. § 971.10. This demand did not trigger the ninety-day period for commencing his trial, however, because “[t]he demand may not be made until after the filing of the information or indictment.” Sec. 971.10(2)(a). The information was filed on May 21, 2007.
¶16 Attorney Jakus orally requested a speedy trial at an August 27,
2007 motion hearing. The court began the
statutory ninety-day period running on that date and set the trial to begin on
October 30. On October 25, however, Jakus
withdrew without objection by Olson. Attorney
Kuchler, appointed the same day, advised the court on October 29 that she
needed more time to review discovery materials and was awaiting transcripts
from the
¶17 The trial court has the discretion to grant a continuance under
Wis. Stat. § 971.10(3) if it
states on the record its reasons for finding that, by granting a continuance, the
ends of justice served outweigh the public’s and the accused’s interests in a
speedy trial. State v.
¶18 Olson also complains that his constitutional right to a speedy
trial was violated. To make that
determination, we consider in the context of the particular circumstances: (1)
the length of the delay; (2) the reason for the delay; (3) whether Olson
asserted his right to a speedy trial; and (4) whether he was prejudiced by the
delay. See Barker v. Wingo, 407
¶19 Here, Olson technically was arrested on March 2, 2006, but was
incarcerated on his
¶20 As noted, the delay primarily was caused by cautious investigation, Olson’s series of attorneys, the additional time his new counsel needed to familiarize herself with the case and to obtain transcripts, and Olson’s psychological exam, for which he agreed to toll the time limits. Olson does not show that the continuances, often at the defense’s request and cautiously granted by the court, were for an inordinate length or an unacceptable reason.
¶21 Still, Olson alleges prejudice. He contends:
Olson was in custody the
entire time. Witnesses moved, one even
died, memories “faded” or were contaminated by others, including the alleged
victims and their mother, notebooks used by police were “lost,” vital
exculpatory evidence was destroyed, all of Olson’s tools and property were
stolen by the “victims” (which is the reason the allegations were made in the
first place), Olson suffered extreme anxiety based on the fact that he did not
know what was going on except from snippets of information from his attorney,
and there was also the extreme frustration of the court’s denial of this right
to present his own defense.
¶22 We disagree. Already in
jail on his
Alleged Prosecutorial Misconduct
¶23 Olson next asserts that prosecutorial misconduct deprived him
of a fair trial. The underlying question
in such an inquiry is whether the prosecutor’s conduct “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” State v. Neuser, 191
¶24 Olson contends that the Waukesha county prosecutor first delayed
filing the complaint against him so as to gather evidence from his probation
agent and then impermissibly used the letters to his family at trial because
they were “legal mail” meant for his lawyer and therefore wrongly
confiscated. See Wis. Admin. Code § DOC
328.21(3)(e). On this record, we
conclude that the
¶25 Olson also levies vague claims that the ADA took contradictory
pretrial positions regarding the pace of proceedings, asked improper questions during
cross-examination about his motivation for writing the letters and, during
closing argument, made an unfounded statement “designed to inflame the jury’s
conscience” that he failed to seek medical advice for an injury he claimed left
him incapable of some of the alleged sex acts.
Our review of the record reveals no hint of prosecutorial misconduct. Also, Olson’s failure to object at the time
of the alleged improprieties waives their review.
Alleged Ineffective Assistance of Counsel
¶26 As a final claim of error, Olson contends that all of his appointed
counsel were ineffective for the novel reason that “[a]ny assistance rendered
by counsel forced on an accused is therefore ‘ineffective’ and prejudice need
not be shown.” Offered without further
development or the support of legal authority, we need not address that
argument any further.
¶27 To establish ineffective assistance of counsel a defendant must
show that counsel’s performance was deficient and that such performance
prejudiced the defense. Strickland
v.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.