��� COURT OF APPEALS ������� DECISION �� DATED AND RELEASED ������������ August 30, 1995 |
�������� NOTICE |
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.� 94-3086-CR
STATE
OF WISCONSIN�������������� IN COURT OF
APPEALS
�� �
DISTRICT II�����������
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STATE OF WISCONSIN,
����������������������� ����������������������� ����������� Plaintiff-Respondent,
����������� ����������� v.
JAMES J. KEMPINSKI,
����������������������� ����������������������� ����������� Defendant-Appellant.
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����������������������� APPEAL from a judgment
and an order of the circuit court for Walworth County:� MICHAEL S. GIBBS, Judge.� Affirmed.
����������������������� Before Anderson, P.J.,
Brown and Snyder, JJ.
����������������������� PER
CURIAM. James J. Kempinski appeals from a judgment which
convicted him of two counts of burglary, party to the crime, in violation of
�� 943.10(1)(a) and 939.05, Stats.,
and sentenced him to concurrent sixteen-year prison terms, consecutive to
another prison term he was then serving.�
He also appeals from an order denying his motion for postconviction
relief.
����������������������� �All of the issues raised by Kempinski on
appeal relate to sentencing.� He
contends that he was deprived of effective assistance of counsel at sentencing
and was denied due process based on defects in the presentence report.� He also contends that the trial court
erroneously exercised its discretion in denying his motion for an adjournment
of the sentencing hearing.� We reject
Kempinski's arguments and affirm the judgment and the order.
����������������������� Kempinski contends that
his trial counsel was ineffective because at sentencing he failed to present
witnesses who could describe Kempinski's rehabilitative needs and suggest
alternatives to the lengthy sentence recommended in the presentence
report.� He contends that his trial
attorney should have presented evidence from Shelly Hoernke, a social worker
for the Wisconsin Department of Corrections, who had worked with him in an
alcohol and drug treatment program during a previous term of imprisonment.� He also argues that his trial counsel could
have secured a report from an independent sentencing expert to discuss
mitigating factors underlying his criminal record and to provide sentencing
alternatives which would have protected the public while rehabilitating
him.�
����������������������� 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).� To prove deficient performance, a defendant
must show that his counsel made errors so serious that he or she was not
functioning as the "counsel" guaranteed by the Sixth Amendment.� Id.� Review of counsel's performance gives great deference to the
attorney and every effort is made to avoid determinations of ineffectiveness
based on hindsight.� State v.
Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845, 847 (1990).� The case is reviewed from counsel's
perspective at the time of trial, and the burden is placed upon the defendant
to overcome a strong presumption that counsel acted reasonably within
professional norms.� Id. at
127, 449 N.W.2d at 847-48.� The
appropriate measure of attorney performance is reasonableness, considering all
the circumstances.� State v.
Brooks, 124 Wis.2d 349, 352, 369 N.W.2d 183, 184 (Ct. App. 1985).�
����������������������� Even if deficient
performance is found, a judgment will not be reversed unless the defendant
proves that the deficiency prejudiced his or her defense.� Johnson, 153 Wis.2d at 127,
449 N.W.2d at 848.� To establish
prejudice, a defendant must show that counsel's errors were so serious as to
deprive him or her of a fair trial, a trial whose result is reliable.� 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.� Id.
at 129, 449 N.W.2d at 848.� A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.� Id.� 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 question of whether
there has been ineffective assistance of counsel is a mixed question of law and
fact.� State ex rel. Flores v.
State, 183 Wis.2d 587, 609, 516 N.W.2d 362, 368-69 (1994).� An appellate court will not overturn a trial
court's findings of fact concerning the circumstances of the case and counsel's
conduct and strategy unless the findings are clearly erroneous.� State v. Knight, 168 Wis.2d
509, 514 n.2, 484 N.W.2d 540, 541 (1992).�
However, the final determinations of whether counsel's performance was
deficient and prejudiced the defense are questions of law which this court
decides without deference to the trial court.�
Id.
����������������������� Both Hoernke and Julie
Paasch-Anderson, a sentencing specialist retained by appellate counsel,
testified at Kempinski's postconviction hearing, as did Kempinski and his trial
counsel.� Hoernke testified concerning
improvements made by Kempinski while in a previous treatment program.� Both Hoernke and Paasch-Anderson indicated
that Kempinski was "treatable" and that a long period of
incarceration was unnecessary and, according to Hoernke, undesirable in terms
of his rehabilitation.�
����������������������� Trial counsel testified
that he discussed with Kempinski the names of several individuals who had
worked with Kempinski in treatment programs during his previous
imprisonment.� However, trial counsel
also noted that the defense strategy at sentencing was to argue in mitigation
that Kempinski committed the new burglaries because of a relapse in his drug
and alcohol problems.� Trial
counsel� explained that he did not
aggressively pursue a strategy involving witnesses like Hoernke because he
believed the value of their testimony would have been limited and might have
been harmful, since Kempinski's commission of new crimes after participating in
a treatment program could be viewed as reflecting poorly on him.�
����������������������� A trial attorney may
select a particular strategy from the available alternatives and need not
undermine the chosen strategy by presenting inconsistent alternatives.� See State v. Hubanks,
173 Wis.2d 1, 28, 496 N.W.2d 96, 106 (Ct. App. 1992), cert. denied, 114
S. Ct. 99 (1993).� Based on the
testimony in this case, the trial court found that trial counsel made a
strategic decision not to present evidence from treatment professionals who
worked with Kempinski during his previous imprisonment.� This finding is not clearly erroneous and
therefore cannot be disturbed by this court.�
In addition, we agree with the trial court that the decision was
reasonable because presenting such testimony would have highlighted the failure
of previous treatment efforts.� It thus
would have undermined the defense strategy of claiming that Kempinski was
committed to treatment efforts and that lengthy incarceration was unnecessary
to rehabilitate him and protect the public.[1]�
����������������������� In addition, it is well
established that the reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions.� Strickland, 466 U.S. at
691.� In this case, Kempinski's trial
counsel stated at sentencing that he had discussed issuing subpoenas for prison
social workers but that Kempinski had asked him not to because of the distance
they would have to travel.� This
representation is consistent with Kempinski's statements at the original February
18, 1994, sentencing date indicating that he wanted to proceed immediately with
sentencing and did not want to delay the hearing even when told by the trial
court that a continuance would provide him with additional time to obtain
information and witnesses relevant to sentencing.� Kempinski's statements as to his wishes further diminish his
claim that his trial counsel acted unreasonably in failing to procure
additional witnesses or an independent presentence report.
����������������������� Even assuming arguendo
that Kempinski proved deficient performance, he failed to satisfy the prejudice
prong of the test for ineffectiveness of counsel.� In support of his claim that prejudice occurred, Kempinski argues
that if the trial court had heard the testimony of Hoernke and Paasch-Anderson
at the sentencing hearing, it would have concluded that a sentence of less than
sixteen years was appropriate.� This
argument is not supported by the record, which indicates that after hearing
their testimony at the postconviction hearing, the trial court stated that it
did "not think it would have made that much of a difference" and that
failure to present their testimony at sentencing did not prejudice
Kempinski.�
����������������������� The trial court's
conclusion is substantiated by the transcript of the sentencing hearing, which
reveals that its primary concerns at sentencing were Kempinski's lengthy record
and continued involvement in serious criminal activities, despite prior
juvenile and adult incarceration.� The
trial court's sentencing discussion indicates that the sentence imposed was
based primarily on the gravity of the offense and the trial court's conclusion
that lengthy incarceration was necessary to protect the public and provide
close rehabilitative control of Kempinski.�
Its discussion substantiates its conclusion that it would not have imposed
a lesser sentence based on the fact that defense witnesses had formed different
conclusions about Kempinski's amenability to rehabilitation.� Because no basis therefore exists to
conclude that Kempinski's sentence would have been shorter if trial counsel had
taken the steps Kempinski now alleges he should have, the prejudice prong of
the ineffectiveness test is unsatisfied.�
See State v. Littrup, 164 Wis.2d 120, 136, 473
N.W.2d 164, 170 (Ct. App. 1991).
����������������������� Kempinski's next
argument is that he was deprived of due process because the probation agent who
prepared the presentence investigation report did not interview him during the
preparation of the report, and because the presentence report did not contain
all information required by the Wisconsin Administrative Code and the Wisconsin
Department of Corrections' operations manual.�
During the sentencing proceedings, Kempinski objected to the presentence
report based on the probation agent's failure to personally interview him.� However, he never claimed that due process
was violated because the presentence report omitted information required by the
administrative code and the operations manual.�
By failing to timely raise this issue, he deprived the trial court of
the opportunity to cure the alleged defects in the report and waived his right
to raise this latter issue on appeal.� See
State v. Marshall, 113 Wis.2d 643, 653, 335 N.W.2d 612, 617
(1983).
����������������������� Even absent waiver, we
discern no due process violation arising from the presentence report.� A defendant carries the burden of proving by
clear and convincing evidence that there was a due process violation in the
sentencing process.� Littrup,
164 Wis.2d at 124, 473 N.W.2d at 165.� A
defendant claiming that a due process violation arose from inaccuracies in a
presentence report is required to prove by clear and convincing evidence that
information in the report was inaccurate and that prejudice resulted from the
misinformation.� Id. at
132, 473 N.W.2d at 168.
����������������������� Kempinski concedes that
the presentence report contained no inaccuracies.� However, he contends that the presentence writer's failure to
include additional objective information gave rise to a due process violation.
����������������������� We disagree.� While the presentence writer did not
interview Kempinski for the specific purpose of preparing the presentence
report, he previously had been the probation and parole agent for Kempinski and
included statements made to him by Kempinski regarding his version of the
current offenses.� In addition, at the
sentencing hearing the trial court permitted trial counsel to state on the
record Kempinski's "version of the story."� The trial court expressly accepted this statement as true.� Consequently, even if the probation agent
should have interviewed Kempinski when preparing the presentence report to
obtain his version of the offenses, this defect was cured and gives rise to no
prejudice.
����������������������� The record also fails to
provide a basis for concluding that Kempinski was prejudiced by the omission of
information from the presentence report.�
While he complains that the report did not provide him with an
opportunity to explain his prior criminal record, he was given this opportunity
at the sentencing hearing, explaining the role his upbringing and drug and
alcohol use played in the present offenses and his prior criminal
activities.� In addition, while he
argues that the report did not advise the trial court of his learning
disability and employment following his release from custody in January 1993,
Kempinski personally informed the trial court at sentencing that he worked two
jobs after being released from prison.�
����������������������� Kempinski fails to
provide any basis for concluding that additional information concerning his
employment history or his learning disability would have constituted
significant mitigating factors at sentencing and affected the trial court's
conclusion that a sixteen-year sentence was appropriate.� Similarly, while Kempinski contends that the
presentence report did not adequately describe prior psychological evaluations
performed on him, the presentence report did describe a 1991 report by Dr.
Robert Gordon, which stated that Kempinski had an antisocial personality
disorder and would likely continue to engage in antisocial behavior.� The evaluations discussed in the presentence
report prepared for postconviction purposes by Paasch-Anderson were consistent
with Dr. Gordon's evaluation and, like the postconviction testimony of Hoernke
and Paasch-Anderson, fail to provide a basis for concluding that Kempinski was
prejudiced by the failure to provide the information at sentencing.� Kempinski therefore has failed to meet his
burden of demonstrating a due process violation.
����������������������� Kempinski's final
challenge is to the trial court's denial of a continuance of the February 25,
1994, sentencing hearing.� The decision
to grant or deny a continuance lies within the discretion of the trial
court.� State v. Wollman,
86 Wis.2d 459, 468, 273 N.W.2d 225, 230 (1979).� The inquiry requires the balancing of the defendant's
constitutional right to adequate representation by counsel against the public
interest in the prompt and efficient administration of justice.� Id.� The denial of a motion for a continuance will not be disturbed
absent an erroneous exercise of the trial court's discretion.� State v. Echols, 175 Wis.2d
653, 680, 499 N.W.2d 631, 640, cert. denied, 114 S. Ct. 246 (1993).
����������������������� Factors a trial court
should consider in deciding a motion for a continuance are:� (1) the length of the delay requested; (2)
whether other counsel are prepared to handle the case in the absence of lead
counsel; (3) whether any other continuances have been requested and granted to
the defendant; (4) the convenience and inconvenience to the parties, witnesses
and court; (5) whether the delay seems to be for legitimate purposes or whether
its purpose seems dilatory; and (6) other relevant factors.� See Wollman, 86 Wis.2d
at 470, 273 N.W.2d at 231.� The mere
denial of a continuance does not in itself constitute a denial of due process
or the constitutional right to counsel.�
Id. at 469, 273 N.W.2d at 230.� However, a defendant may establish a constitutional violation by
showing actual prejudice, as when the time permitted counsel for preparation is
fundamentally unfair, or by showing specific prejudice resulting in ineffective
assistance of counsel or a due process violation.� See id. at 469-70, 273 N.W.2d at 230-31.
����������������������� Based on these
standards, we conclude that the trial court properly exercised its discretion
in denying Kempinski's motion for a continuance.� While Kempinski contended that a continuance was necessary to
permit the probation agent to interview him in the context of preparing the
presentence report, the trial court cured that problem by permitting Kempinski
to provide his version of the offenses at the hearing.� Although Kempinski contended that the trial
court's remedy was insufficient and claimed that a continuance should be
granted so that he could seek an independent presentence investigation, the
trial court denied that request on the ground that it was dilatory, noting that
the agent who prepared the presentence report had three years of contact with
Kempinski and that Kempinski had previously had ample time to conduct an
independent investigation.
����������������������� Because Kempinski was
provided with adequate time to prepare for sentencing and because this was the
second continuance of sentencing requested by him, the trial court properly
deemed the request to be dilatory.� In
addition, since a delay would have inconvenienced the trial court and the State
and since Kempinski failed to show any material and unremedied inaccuracies or
defects in the presentence report, the trial court reasonably concluded that no
legitimate reason existed for a continuance.�
Moreover, the time given to the defense to prepare for sentencing was
not fundamentally unfair, and, as previously discussed, neither ineffective
assistance of counsel nor a due process violation has been shown.� No basis therefore exists in the record for
finding actual or specific prejudice from the denial of the motion.� See id. at 470, 273
N.W.2d at 231.
����������������������� By the Court.�Judgment
and order affirmed.
����������������������� This opinion will not be
published.� See Rule 809.23(1)(b)5, Stats.
���� [1]� Kempinski argues that trial counsel could not reasonably have determined that Hoernke's testimony would not have been beneficial prior to sentencing because he never even talked to her.� We disagree.� Trial counsel's investigatory duty was to make a reasonable investigation or to make a reasonable decision that made a particular investigation unnecessary.� State v. Hubert, 181 Wis.2d 333, 343-44, 510 N.W.2d 799, 803 (Ct. App. 1993) (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)).� Since any testimony by Hoernke would undoubtedly have revealed that Kempinski reoffended within approximately six months of being released from prison after completion of a treatment program, trial counsel reasonably could conclude without further investigation that presenting testimony from Hoernke would be inadvisable.