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COURT OF APPEALS DECISION DATED AND RELEASED September 7, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3350-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
FRANKLIN A. BARTON,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for La Crosse County: MICHAEL J. MULROY, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Vergeront, JJ.
PER
CURIAM. Franklin A. Barton appeals from a judgment
of conviction for multiple counts of second-degree sexual assaults and related
crimes, and from a postconviction order.
The issues are whether Barton received ineffective assistance of trial
counsel and whether the trial court erroneously exercised its sentencing
discretion. We conclude that Barton has
not shown any prejudice from counsel's performance. Furthermore, because the trial court applied the proper
sentencing factors, we conclude that its refusal to consider the defendant's
history as a child abuse victim was harmless error. Therefore, we affirm.
Barton pleaded guilty to
multiple counts of second-degree sexual assault, contrary to
§ 940.225(2)(a), Stats., and
to other related crimes. The trial
court imposed the maximum aggregate sentence. Barton moved for postconviction
relief alleging ineffective assistance of trial counsel. The court
denied the motion, ruling that because Barton suffered no unfair prejudice, it
was unnecessary to determine whether counsel's performance was deficient. Barton appeals.
At the postconviction
hearing, trial counsel and Barton testified differently on two claimed
instances of ineffective assistance, namely counsel's failure: (1) to show Barton the presentence
investigation report (PSI); and (2) to present an argument at sentencing. The trial court concluded that these errors
and omissions were not prejudicial because Barton failed to show a likelihood
that the court would have imposed a different sentence. The court found that counsel's version of
events was more credible than Barton's version. Because this finding is not clearly erroneous, we review the
court's order in the context of counsel's testimony.
The PSI contained
numerous unfavorable characterizations of Barton, including comments from
Barton's brother, a pastor. Pastor
Barton referred to his brother as a thief and a con artist. However, trial counsel testified that he
reviewed the substance of the PSI with Barton and that Barton did not tell him
to correct any information in the PSI, but merely conceded that he and his
brother never saw "eye to eye."
Barton testified that the PSI mischaracterized his juvenile record and
minimized the fact that he was abused as a child. He also claims that he would have advised the court that he had
completed a drug and alcohol treatment program, to demonstrate his ability to
adjust to supervision.
Trial counsel presented
a very brief sentencing argument.[1] However, counsel testified that Barton
directed him not to present an argument because he deserved the maximum
sentence.[2] Counsel further testified that Barton
confessed his guilt to a police detective and wrote to the trial court
admitting that he deserved the maximum sentence, against counsel's advice.[3]
To establish ineffective
assistance of counsel, the defendant must prove that counsel's deficient
performance was prejudicial, in that counsel's errors were so serious that the
defendant was deprived of a fair trial.
State v. Marty, 137 Wis.2d 352, 356-57, 404 N.W.2d 120,
122 (Ct. App. 1987). Whether a
defendant was prejudiced by counsel's deficient performance is a question of
law, which we review de novo. Id. Because we agree with the trial court that
Barton suffered no prejudice, we need not decide whether trial counsel's
performance was deficient. Strickland
v. Washington, 466 U.S. 668, 697 (1984).
Barton claims that he
received ineffective assistance of trial counsel because he did not personally
review the PSI. A defendant is entitled
to personally review his PSI. State
v. Skaff, 152 Wis.2d 48, 56-57, 447 N.W.2d 84, 88 (Ct. App. 1989). The trial court denied the motion,
concluding that the misinformation in the PSI was not prejudicial because the
court was not influenced by this "ancient history."
We agree with the trial
court's conclusion that there was no prejudice. First, Barton was aware of the substance of the PSI and did not
attempt to "set the record straight" until after the court imposed his
sentence. Second, the allegedly
erroneous information principally related to his character. However, the court's assessment of Barton's
character was so overwhelmingly unfavorable that it is not reasonably probable
that correction of this "ancient history" would have affected the
sentence it imposed. After considering
the gravity of the offenses, Barton's confession and his correspondence to the
court admitting that he deserved the maximum sentence, we conclude that it is
not reasonably probable that correction of the errors and omissions in the PSI
would have resulted in a different sentence.
Barton also claims
ineffective assistance of counsel because his trial counsel failed to present a
substantive argument at sentencing.
Thereafter, the trial court imposed the maximum sentence. Barton contends that counsel should have
used his independent professional judgment and presented a substantive
sentencing argument to override Barton's directive. The court's credibility finding, that counsel's version of events
was more credible than that of Barton's, is not clearly erroneous. Furthermore, we agree with the court's
conclusion that Barton suffered no prejudice from counsel's failure because no
sentencing argument would have affected the sentence it imposed.
Barton also contends
that the trial court erroneously exercised its sentencing discretion because it
refused to consider the defendant's history of physical abuse as a child. Although the court's categorical refusal is
error, because it must impose a sentence specifically designed for the
particular defendant's commission of a specific crime, this error is
harmless. The trial court properly
applied the sentencing factors.
We review a sentence to
determine whether the trial court erroneously exercised its discretion. State v. Larsen, 141 Wis.2d
412, 426, 415 N.W.2d 535, 541 (Ct. App. 1987).
The primary sentencing factors are the gravity of the offense, the
character of the offender, and the need for public protection. Id. at 427, 415 N.W.2d at
541. The weight given to each factor is
also within the trial court's discretion.
Cunningham v. State, 76 Wis.2d 277, 282, 251 N.W.2d 65,
67-68 (1977).
The trial court
extensively considered and applied the sentencing factors. It summarized the gravity of the offenses and
stated that it had "rarely seen an offense, a series of offenses, which
have disgusted [it] more." The
court extensively considered Barton's character and noted his previous
convictions and his failure to adjust to supervision. The court addressed Barton's character deficiencies and concluded
that he is "an individual without any redeeming values at all." It then considered public protection and
reasoned that Barton's alcoholism and penchant for taking advantage of
individuals who are particularly vulnerable compelled a lengthy sentence
because "[t]he public has a right to be protected from [Barton], and I
have a duty as the judge to ensure that they are protected from you." After applying the sentencing factors, the
court explained to Barton why the sentencing guidelines for these crimes were
too lenient and why it was imposing the maximum aggregate sentence. Barton's sentence was based on a proper
application of the sentencing factors, rendering harmless the court's error to
refuse to consider Barton's history of physical abuse as a child.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Trial counsel's entire sentencing argument was that "[t]he foremost motivating factor for Mr. Barton in pleading guilty to the crime was to spare the victim of any further suffering. The impact of his pleas of guilty and the negotiated plea only reduced his total exposure by 10 years. That's all I have to say, Your Honor."