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COURT OF APPEALS DECISION DATED AND RELEASED November
29, 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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 94-2702-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
OPHEOUS
L. SIMMONS,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Racine County: NANCY E. WHEELER, Judge. Affirmed.
Before
Anderson, P.J., Brown and Snyder, JJ.
PER
CURIAM. Opheous L.
Simmons appeals from a judgment convicting him of robbery with threat of force
contrary to § 943.32(1)(b), Stats.,
and from an order denying his postconviction motion. We affirm.
The
history of the trial court proceedings is necessary to a discussion of the
appellate issues. Simmons was charged
in November 1991 with armed robbery of the Security Bank in Racine, Wisconsin. Simmons moved to suppress an out-of-court
photographic array which resulted in his identification by one of the bank
tellers, Denise King. The trial
court denied the motion to suppress. On
June 1, 1992, while visiting Racine in custody of the Dodge County Correctional
Institution on robbery, disorderly conduct and obstruction charges,[1]
Simmons briefly escaped from the courthouse, resulting in additional charges of
escape and bail jumping.
On
June 16, 1992, Simmons pled no contest in Racine County to armed robbery and
escape. Under the plea agreement, the
repeater allegation was to be dropped from the armed robbery charge, and the
bail jumping, disorderly conduct and resisting charges were to be dismissed and
read in at sentencing. Simmons wanted
the Dodge and Racine County escape charges consolidated in Racine County as
part of his plea agreement.[2] The Racine County prosecutor agreed to
contact the Dodge County district attorney's office.
On
September 24, 1992, Simmons and the State stipulated that he could withdraw his
June 16 plea and the dismissed Racine charges would be reinstated. On October 16, Dodge County filed escape
charges based on the June 1 incident.
On November 4, Simmons pled guilty in Dodge County to the escape charge
and received a one-year sentence consecutive to any sentence previously
imposed. On May 24, 1993, Simmons, now
represented by Attorney Douglas Henderson, pled no contest to robbery in Racine
County, with the armed and repeater allegations deleted. The State agreed to recommend a seven-year
prison sentence consecutive to prior sentences and to dismiss the Racine County
escape, bail jumping, resisting and disorderly conduct charges.
On
postconviction motion, Simmons moved to withdraw his no contest plea, asserted
the existence of a new factor requiring resentencing and claimed his trial
counsel was ineffective. The trial
court rejected Simmons' arguments.
Simmons appeals.
Simmons'
first appellate issue relates to the trial court's refusal to suppress a bank
teller's identification of him. Simmons
argues that King's identification resulted from a suggestive photographic
array. A court applies a two-part test
to determine whether an out-of-court photographic identification is
admissible. State v. Haynes,
118 Wis.2d 21, 30, 345 N.W.2d 892, 897 (Ct. App. 1984). First, the court must determine whether the
identification procedure was impermissibly suggestive. Id. Second, the court must assess whether, under the totality of the
circumstances, the out-of-court identification was reliable, despite the
suggestiveness of the procedure. Id. The defendant has the burden of establishing
suggestiveness. See Powell
v. State, 86 Wis.2d 51, 65-66, 271 N.W.2d 610, 617 (1978). “Suggestiveness in photographic arrays may
arise in several ways—the manner in which the photos are presented or
displayed, the words or actions of the law enforcement official overseeing the
viewing, or some aspect of the photographs themselves.” Haynes, 118 Wis.2d at 30, 345
N.W.2d at 897.
We
review allegations of infirmity in the identification procedure de novo
because a question of law is presented.
State v. Wilson, 179 Wis.2d 660, 682, 508 N.W.2d 44, 52‑53
(Ct. App. 1993), cert. denied, 513 U.S. ___, 115 S. Ct. 100 (1994). However, we accept the trial court's
findings of fact unless they are clearly erroneous; the trial court is the
final arbiter in determining witness credibility. Id. at 682-83, 508 N.W.2d at 53.
At
the suppression hearing, Detective Herbert Nikolai testified that he laid the
photographs out on a table and told King to review them to see if she could
pick anyone out. Within a few seconds
after the detective arrayed the photographs, King stated, “Oh my God, I think
that's the one,” and pointed to Simmons' picture. At some point that day or at a later time, the detective
confirmed for King that she had selected the suspect's photograph. Nikolai denied making any suggestive
movement or remark which would have prompted King to select Simmons'
photograph.
King
testified that Nikolai told her that he had some pictures to show her and asked
her to look at them. She identified
Simmons before the rest of the photographs were laid down. After King picked out Simmons' picture,
Nikolai told her that Simmons was the suspect.
When Nikolai inquired whether King was positive, she said that she was
very nervous but that she thought Simmons was the robber but could not
“guarantee my life on it.”
Simmons
argued that the identification should be suppressed because King was only shown
three photographs, and the detective's confirmation that she had selected the
suspect influenced King's certainty.
The State argued that the photographic array was presented properly and
that King picked out the robber as soon as his photograph was shown to her.
The
trial court found that the investigator did not properly present the
photographs to King. Nikolai should
have told King to review all of the photographs before identifying one of them
and refrained from making any remarks.
Nevertheless, the trial court concluded that the array did not suggest
an identification.
We
agree with the trial court that the manner in which the identification was made
was not suggestive. It is clear from
King's testimony at the preliminary examination and the suppression hearing
that she reacted spontaneously to Simmons' picture[3]
and that her reaction was not a result of any comment by Nikolai. The spontaneity of King's reaction
undermines Simmons' claim that the photographic array suggested an
identification.
Although
we do not hold that the array was suggestive, we stress again that courts
prefer a completely neutral and unremarkable array. By this we mean presentation of the photographs to the witness so
that the witness has an opportunity to simultaneously view the photographs
before identifying a suspect. Such a
procedure is inherently neutral and does not create potential appellate
issues. Nevertheless, we see no
connection between the manner of the array and King's identification of
Simmons.[4]
Simmons
argues that King's identification of him was equivocal, noting that at one time
King said, “Oh my God, that's [the robber]” and at another time she said, “Oh
my God, I think that's [the robber].”
We do not see a material difference between the two statements.
Because
the out-of-court identification by photographic array was not impermissibly
suggestive, the trial court properly refused to suppress it. Thereafter, the jury was charged with
assessing the credibility of King's identification testimony. See Radford v. J.J.B. Enters.,
163 Wis.2d 534, 543, 472 N.W.2d 790, 794 (Ct. App. 1991).
Simmons
seeks to withdraw his no contest plea to the Racine County robbery charge on
the grounds that it was not knowingly and voluntarily entered because he
believed that dismissal of the Racine County escape charge as part of his plea
agreement would nullify the Dodge County escape conviction. Simmons also complains that his trial
counsel did not advise him that the Dodge County conviction would remain of
record after he entered a plea to the Racine charges and that his attorney did
not bring the Dodge County conviction to the Racine court's attention at
sentencing. The latter claim also forms
the foundation for Simmons' argument that the Dodge County conviction was a new
factor requiring resentencing.
Plea
withdrawal is discretionary with the trial court. State v. Spears, 147 Wis.2d 429, 434, 433 N.W.2d
595, 598 (Ct. App. 1988). A defendant
who wishes to withdraw a no contest plea has the burden of showing by clear and
convincing evidence that withdrawal is necessary to correct a manifest
injustice. State v. James,
176 Wis.2d 230, 236-37, 500 N.W.2d 345, 348 (Ct. App. 1993). A “manifest injustice” arises where a
defendant enters a plea without knowledge of the consequences of the plea. Id. at 237, 500 N.W.2d at
348. Whether a defendant has made a
prima facie showing that his or her plea was entered involuntarily or
unknowingly is a question of law which we review independently of the trial
court. Id.
The
trial court rejected Simmons' request to withdraw his Racine County plea
because Simmons, by virtue of his previous contacts with the criminal justice
system and his six attorneys in this case, had sufficient understanding of the
proceedings. The trial court found that
allowing Simmons to withdraw his Racine County plea would not have any impact
on the validity of the Dodge County sentence.
We
see no merit to this claim. First, it
appears that the Racine County prosecutor's interest in addressing the Dodge
County charge related only to the first plea agreement from which Simmons
withdrew on September 24. On
November 4, Simmons pled guilty to escape in Dodge County. The following May, Simmons appeared in
Racine County to enter a no contest plea to the robbery charge and to have
several other Racine County charges dismissed.
Because Simmons withdrew from the plea agreement in which the status of
the Dodge County charge was discussed, the State was not bound to pursue the
Dodge County matter as part of the second plea agreement. Second, Simmons did not mention the Dodge County
matter at any point in the second Racine County plea colloquy, despite several
opportunities to bring this to the Racine court's attention.[5] Simmons has not demonstrated the existence
of a manifest injustice necessitating plea withdrawal.
We
turn to Simmons' ineffective assistance and new factor claims. At the postconviction motion hearing,
Douglas Henderson, who represented Simmons at the second plea hearing and
at sentencing, testified that he had no knowledge of the Dodge County
conviction and did not recall discussing it with Simmons or bringing it to the
trial court's attention.[6] Henderson did not request an update of the
presentence investigation report (PSI) which had been completed when Simmons
entered his first plea to the Racine County charges because Simmons wanted to
be sentenced immediately and advised counsel that a PSI had already been
completed. Henderson testified that he
answered all of Simmons' questions and that Simmons appeared to understand the
conversations they had. He did not
recall that Simmons inquired about the Dodge County conviction. He reviewed the July 1992 PSI with Simmons,
and Simmons did not point out that the Dodge County conviction was absent.
Simmons
testified that he told Henderson that he withdrew his first plea in order to
address the Dodge County escape charge.
Simmons claimed that Henderson told him that a Racine plea would dismiss
the Dodge County case. Henderson then
returned to testify that he would not have made such a statement because he
questions whether a Racine court would have authority to dispose of a judgment
of conviction from another county.
To
establish a claim of ineffective assistance, a defendant must show that
counsel's performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). However, we need
not consider whether trial counsel's performance was deficient if we can
resolve the ineffectiveness issue on the ground of lack of prejudice. State v. Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311
(1990). Whether counsel's performance
prejudiced the defendant is a question of law which we review de novo. Id.
The
defendant must show that there is a reasonable probability that but for
counsel's unprofessional errors, the result of the proceeding would have been
different. State v. Johnson,
153 Wis.2d 121, 129, 449 N.W.2d 845, 848 (1990). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
(quoted source omitted). In applying
this principle, reviewing courts are instructed to consider the totality of the
evidence before the trier of fact. Id.
at 129-30, 449 N.W.2d at 848-49.
The
trial court accepted Henderson's testimony regarding his conversations with
Simmons about the Dodge County conviction.
This was a credibility determination which was within the province of
the trial court to make. See State
v. Michelle A.D., 181 Wis.2d 917, 926, 512 N.W.2d 248, 251 (Ct. App.
1994). We agree with the trial court
that Simmons did not establish that Henderson's representation prejudiced
him. The totality of the circumstances
reveals the following: the trial court
conducted a thorough plea colloquy; Henderson testified that he had no
knowledge of the Dodge County conviction and that Simmons did not bring it to
his attention; Simmons had a series of attorneys and exclusive access to
information about the Dodge County conviction; and Simmons instructed Henderson
to expedite his sentencing by using a PSI which predated the Dodge County
conviction. These circumstances significantly
undercut Simmons' prejudice claim and do not undermine our confidence in the
proceeding.
With
regard to Simmons' new factor claim, the trial court acknowledged it was not
aware of the Dodge County conviction at the time it sentenced Simmons. In sentencing Simmons, the Racine court relied
upon a PSI which predated Simmons' sentencing in Dodge County. The trial court found that Simmons knew that
the court was using this PSI and failed to advise the court that it was
inaccurate. Also, in exercising his
right of allocution at the sentencing hearing, Simmons did not refer to the
Dodge County conviction, although this information was clearly available to
him. Therefore, the Racine court
rejected Simmons' contention that the existence of the Dodge County conviction
was a new factor requiring resentencing.
The court also found that the sentence was less than the sentence
recommended by the State and that Simmons “has essentially benefited by the
lack of information about the Dodge County conviction, because he was thereby
allowed the benefit of concurrent time as to the sentence from Dodge
County.” The trial court also rejected
Simmons' claim of ineffective assistance of counsel.
We
agree with the trial court that Simmons did not demonstrate the existence of a
new factor. “A new factor is a fact
relevant to imposition of the sentence and not known to the trial court at the
time of the original sentencing, either because it did not then exist or
because the parties unknowingly overlooked it.” State v. Kaster, 148 Wis.2d 789, 803, 436 N.W.2d
891, 897 (Ct. App. 1989). Whether a
fact satisfies this standard presents a question of law. Id.
The
Dodge County conviction was not “unknowingly overlooked,” and we are unable to
discern how, had the trial court been aware of the Dodge County conviction,
Simmons would have benefited in his sentencing in Racine County. The trial court properly exercised its
discretion. See State v.
Michels, 150 Wis.2d 94, 96, 441 N.W.2d 278, 279 (Ct. App. 1989)
(sentence modification based on a new factor is within the trial court's
discretion).
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[3] At the
preliminary examination, King testified that she reviewed five or six
photographs approximately one and one-half months after the robbery and that
Simmons was the third photograph. King
testified that she remembered that her exact words were, “Oh my God, that's
him.”
[4] While King
identified Simmons' photograph upon its appearance in the array, she apparently
looked at all the photographs because she testified at the suppression hearing
that the array presented as an exhibit at the hearing consisted of “the same
pictures” she was shown at the bank.
[5] At the second
plea agreement hearing on May 24, 1993, the prosecutor put the plea agreement
on the record and the court referenced the previously withdrawn plea. Simmons indicated he did not have any
questions about either the armed robbery or felony escape charges, had had
sufficient time to discuss matters fully with his counsel and did not have any
questions of the court.