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COURT OF APPEALS
DECISION
DATED AND FILED
March 29, 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 WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT I
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State of Wisconsin,
Plaintiff-Respondent,
v.
Peter Griffin,
Defendant-Appellant.
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APPEAL
from a judgment and an order of the circuit court for Milwaukee County: Timothy
A. Witkowiak, Judge. Affirmed.
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Peter Griffin appeals from
a judgment of conviction, entered upon a jury’s verdict, on one count of
cocaine possession as a second or subsequent offense, and from an order denying
his postconviction motion. The circuit
court denied the motion, which alleged ineffective assistance of counsel,
without a hearing. Because the motion was
conclusory and failed to demonstrate Griffin
is entitled to relief, we affirm.
¶2 Griffin
was arrested following a traffic stop on February 12, 2007. The events between that arrest and the
appointment of his fourth trial attorney are largely irrelevant. On May 5, 2008, the circuit court held a
hearing on counsel’s suppression motion.
The motion was denied, as were two motions that Griffin had previously filed pro se.
The court set trial for August 25, 2008.
¶3 On August 22, 2008, Griffin
filed five pro se motions. On the trial date, the circuit court
expressed concern over whether it should even acknowledge the motions, given
that Griffin
was represented by counsel. The court
also noted that the motions had been filed well past the deadline set by a
prior scheduling order. Counsel asked
for an adjournment to review her client’s motions and to decide whether she
should pursue them. The court granted
the request.
¶4 Eventually, on the final pretrial date in November 2008,
counsel explained that she had reviewed the motions and was seeking to withdraw
them. She told the circuit court that
she “explained to [Griffin]
if he wants to proceed with the motions, then he would have to get rid of me as
his lawyer and then proceed pro se.” The
case was passed so that counsel could confer further with Griffin.
Counsel then advised the court:
“[T]his is what Mr. Griffin wants to do.
He wants me to represent him. And
I think that’s in his best interest that I represent him. But he wants his motions reserved for
potential appellate review depending on what happens.” The court responded that it would not hear
the motions, but they would remain part of the file. The case proceeded to trial and the jury
convicted Griffin.
¶5 Postconviction counsel was appointed, and Griffin moved for relief on the basis of ineffective
assistance of trial counsel. Specifically,
he alleged that trial counsel incorrectly stated that Griffin’s
motions would be preserved for appellate review and claimed that she was ineffective
for not raising the judicial recusal and expert testimony issues identified in two
of Griffin’s
motions. He also alleged that trial
counsel was ineffective for deciding that evidence of $3,400 cash seized from Griffin should be
prohibited from introduction, and for agreeing that a police report should not
be shown to the jury upon its request.
¶6 The circuit court rejected the motion. In short, it ruled that the judicial recusal
and expert testimony motions would have been denied, and that trial counsel was
on record, with sound reasoning, that both the $3,400 cash and the police
report would have been prejudicial to her client. Griffin
appeals.
¶7 Whether a motion, on its face, alleges sufficient material
facts that, if true, entitle a defendant to relief is a question of law. See State
v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d
568, 682 N.W.2d 433. If the motion
raises such facts, an evidentiary hearing must be held. Id. If the motion is insufficient, or conclusory,
or if the record conclusively demonstrates the defendant is not entitled to relief,
the circuit court may grant or deny a hearing in its exercise of
discretion. Id.
A discretionary determination is reviewed for an erroneous exercise of
that discretion. Id.
We conclude that the postconviction motion is, on its face, insufficient
to entitle Griffin
to relief, and we conclude that the circuit court properly exercised its
discretion in denying the motion.
¶8 With regard to the unpreserved pro se motions, the postconviction motion specifically alleged that
Griffin raised issues of judicial recusal—because the trial court had presided
over a case involving Griffin’s brother—and of calling an expert to rebut the
State’s expert’s testimony. The motion
claims that if properly litigated “these issues could have materially altered
the course of the trial. By not being
properly litigated, the absence of these issues cast doubt on the proceedings
and the outcome of the trial.”
¶9 The circuit court rejected these arguments as conclusory. It noted that nothing in the motion papers
caused it to recall Griffin’s
brother’s case, and the motion failed to allege any objective claim that the
court was biased. It further noted that
the State’s expert merely confirmed that powder found on Griffin
was cocaine, and that Griffin
had neither identified any potential expert who would counter that, nor had he
identified the substance of what any defense expert would testify to.
¶10 On appeal, Griffin
does not address these omissions.
Instead, he reiterates that “[i]f properly litigated, these issues could
have reasonably altered the outcome of the pretrial stages.” However, this assertion, like the motion, is
entirely conclusory and devoid of any factual support. Griffin
has not attempted to show the motions could have been successful. Counsel is not ineffective for failing to
pursue meritless motions, see State
v. Harvey, 139 Wis. 2d 353, 380, 407 N.W.2d 235 (1987), and it is
not this court’s duty to “‘sift and glean the record’” for facts that would
support Griffin’s claims, see Grothe
v. Valley Coatings, Inc., 2000 WI App 240, ¶6, 239 Wis. 2d 406,
620 N.W.2d 463 (citation omitted).
¶11 Griffin also asserts on appeal that “it is a reasonable outcome
that in light of counsel deciding not to litigate Appellant’s pro se motions, thus waiving the right
to challenge the substantive portion of the motions on appeal, Appellant would
not have agreed to proceed with trial counsel.” However, Griffin’s
motion never alleged that trial counsel personally advised him that she could
ensure his issues were preserved for appeal, and we do not read her comments to
the court as anything other than a statement of her client’s wishes. To the extent Griffin’s appellate argument means he would
have proceeded pro se had he known
the issues would not be preserved, the record demonstrates that counsel
specifically informed him he would need to so elect if he wanted to pursue the
motions. To the extent Griffin means he
would have requested a new attorney, he has neither alleged nor shown that he
would have been appointed, or would have been able to retain, a fifth trial attorney.
¶12 With regard to the $3,400, Griffin complains only that the decision to exclude
the evidence “was deficient because it prevented the jury from considering
alternate theories for why the traffic stop may have been initiated. Moreover, this decision is prejudicial
because it cast doubt on the proceedings and the trial outcome.” This, too, is conclusory. The circuit court explained that trial
counsel’s reasoning was quite clear: Griffin had only been charged
with cocaine possession, and she did not want the jury to brand him a
drug-dealer. We give great deference to
trial counsel’s performance, see State
v. Koller, 2001 WI App 253, ¶9, 248 Wis. 2d 259, 635 N.W.2d 838,
and her strategy here appears beyond sound.
On appeal, Griffin
does not attempt to show that counsel’s strategy was improper, nor does he demonstrate
how failing to introduce the $3,400 casts doubt on the proceedings in any way.
¶13 Finally, with regard to the police report, Griffin claims it
was deficient for trial counsel to agree that the jury should not see the
written report, despite the jury’s request for it. He indicates that the officer who wrote the
report was not the officer who testified.
He asserts that “[i]f the jury was allowed to see the report, it would
have cast doubt on the credibility of the police officer that testified, thus
casting doubt on the proceedings and the outcome of trial .… [B]y agreeing not to let the jury see the
written police report, it prevented the jury from considering evidence that may
rebut the testimony and the credibility of the police officer.”
¶14 The circuit court noted that trial counsel wanted the report
excluded because it contained information prejudicial to Griffin—like the fact
that $3,400 had been recovered—and that in any event, counsel did an admirable
job cross-examining the police officer. Further,
Griffin never alleges
what the police officer actually testified to, what in the report was contradictory
to that testimony, or how a discrepancy between the two might have swayed the
jury.
¶15 Ultimately, to demonstrate ineffective assistance of counsel, a
movant must show prejudice, which means “showing that counsel’s alleged errors
actually had some adverse effect on the defense.” Id.,
¶¶7, 9. Griffin’s postconviction motion, like his appellate
brief, is comprised of conclusory claims and little else. The motion was, therefore, insufficient to warrant
relief, see Allen, 274 Wis. 2d 568, ¶21,
so the circuit court properly denied the motion.
By the Court.—Judgment and order
affirmed.
This
opinion shall not be published. See Wis.
Stat. Rule 809.23(1)(b)5. (2009-10).