COURT OF APPEALS DECISION DATED AND RELEASED February 28, 1996 |
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0261-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RONALD J. SAXON,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Kenosha County: MICHAEL FISHER, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
PER CURIAM. Ronald J. Saxon appeals
from judgments convicting him of kidnapping, second-degree sexual assault and
bail jumping, all as a repeater, and from an order denying his postconviction
motion. We reject Saxon's claims that
his trial counsel rendered ineffective assistance and affirm.
Saxon's claims of
ineffective assistance of counsel fall into three categories: (1) counsel failed to request that all
proceedings be recorded by the court reporter; (2) counsel failed to seek
severance of the bail jumping charge; and (3) counsel did not adequately advise
Saxon regarding a proposed plea agreement.
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). A judgment will not be reversed unless the defendant proves that
counsel's deficient performance prejudiced his or her defense. State v. Johnson, 153 Wis.2d
121, 127, 449 N.W.2d 845, 848 (1990).
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.
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 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.
Approximately four
months prior to the jury trial, the prosecutor made a written plea offer to
Saxon's counsel in which he offered to dismiss the bail jumping charge in
exchange for a guilty plea to false imprisonment and fourth-degree sexual
assault as a repeat offender. The State
offered to recommend four years of probation and no additional jail time beyond
a nine-month term Saxon would be serving in another county on an unrelated
obstructing charge. Saxon rejected the
plea offer. The circumstances of that
decision are the subject of his claim of ineffective assistance of counsel.
The following facts are
relevant to Saxon's claim that counsel inadequately assisted him in evaluating
the plea agreement proposed by the State.
At the postconviction motion hearing, Saxon testified that he learned of
the plea offer in a telephone conversation with trial counsel in the middle of
June 1993. Saxon stated that he
understood the plea offer required a guilty or no contest plea to fourth-degree
sexual assault and that the State would recommend four years of probation and
no additional jail time. However, Saxon
testified that trial counsel told him the kidnapping charge "was being
left open for the State to sentence me on." Saxon believed that trial counsel informed him that he would face
a twenty-year sentence on the kidnapping charge but would probably receive
probation on the fourth-degree sexual assault charge. Saxon complained that trial counsel never explained the various
penalties he faced under either the original charges or the plea bargain and
that counsel advised him that they had "a very fightable case." Saxon testified that had he understood that
the kidnapping charge would have been reduced to a less serious false
imprisonment charge, he would have accepted the plea agreement.
Saxon acknowledged
receiving and reading a copy of the prosecutor's written offer. However, he failed to notice the State's
kidnapping/false imprisonment proposal.
Saxon claimed that he has a learning or reading disability which hinders
his comprehension. He also testified
that the State's explanation of the terms of the plea agreement the morning of
trial and the trial court's attempt to confirm that Saxon understood that he
was rejecting an offer which would substantially reduce his possible sentence
varied with his understanding of the likely term of imprisonment under the plea
agreement. Therefore, he decided to go
to trial to give his version of the events leading up to the criminal charges.
On cross-examination,
the prosecutor had Saxon read the written offer into the record, which he did
without much difficulty, and asked him what portion of it he did not
understand. Saxon testified that he did
not "catch the phrase false imprisonment" and that he was not
"totally attuned to the letter" because it was included with
materials he deemed irrelevant and he tends to ignore things he does not think
are important or that he thinks he already knows.
Trial counsel testified
that he orally communicated the contents of the State's plea offer to Saxon and
provided him with a copy of the letter.
Counsel and Saxon discussed the plea offer each time they met or spoke,
and Saxon "always insisted he did not wish to enter into any plea
agreement." Counsel believed Saxon
rejected the plea offer and elected to go to trial because he asserted his
innocence. Counsel had no indication
that Saxon had a learning disability and considered Saxon's profession, a
licensed master electrician, as evidence of his ability to understand important
matters. Saxon never indicated that he
was willing to enter a plea to a lesser offense or suggested a modification of
the plea agreement which would make it more palatable to him.
In its findings of fact,
the trial court recalled that shortly before the jury was selected, it
attempted to get the parties to settle.
The court found that trial counsel conferred with Saxon up to the time
of jury selection.
It is implicit in the
trial court's ruling that it did not find credible Saxon's claims that he did
not understand the plea agreement or that trial counsel did not assist him in
understanding it. Where the trial court
acts as the finder of fact, it is the court's responsibility to evaluate the
credibility of the witnesses. State
v. Owens, 148 Wis.2d 922, 930, 436 N.W.2d 869, 872-73 (1989).
There is no evidence
that Saxon's alleged learning disability hindered his ability to understand the
oral communications from trial counsel, the prosecutor and the trial court
regarding the terms of the plea agreement.
The transcript of discussions regarding the plea agreement on the
morning of trial indicates that Saxon acknowledged the accuracy of the
prosecutor's recitation of the plea agreement and understood the trial court's
admonition that he faced substantially less prison time under the plea
agreement. Finally, there is no showing
that counsel was aware of Saxon's claimed disability such that counsel could be
deemed ineffective for not having acknowledged the disability.
The record does not
support Saxon's claim of ineffective assistance of counsel with regard to the
circumstances surrounding the plea agreement.
Rather, the record supports an inference that Saxon declined the plea
agreement because he believed in his innocence, not because he misunderstood
the agreement's terms.
Saxon next contends that
trial counsel erred in not having parts of the trial reported. He argues that the deficient record made it
impossible to fully evaluate the prejudice resulting from trial counsel's
deficient performance or to permit identification and pursuit of additional
claims of reversible error.
Trial counsel testified
at the postconviction motion hearing that he did not have closing arguments
recorded because he had never known the prosecutor to overstep the bounds of
proper closing argument, and the prosecutor did not do so in this case. Counsel did not recall objecting at any
point during jury selection and stated that there were no problems in that
area. Although he did not recall
whether he objected during opening statements, counsel did not believe there
were any problems in that area either.
Counsel did not recall any unreported bench conferences, that he
objected to the prosecutor's alleged misstatement of the law regarding
kidnapping, or that the prosecutor misquoted Saxon's testimony or referred to
Saxon's prior record or pending charges in Jefferson County during closing
argument. Counsel stated that had the
prosecutor made reference to Saxon's prior record during closing argument, he
would have sought a mistrial on the record.
Saxon's recollection
differed from trial counsel's. Saxon
testified that counsel objected during the prosecutor's closing argument
because the prosecutor misstated the law of kidnapping, referred to his
"numerous convictions" during closing argument and misrepresented his
testimony. Saxon also testified that
after the jury retired to deliberate, while trial counsel was out of the room,
the prosecutor stated to the court that the jury would want to see the
"preliminary transcripts," and the court responded that the jury
would not see the transcripts. Saxon
also claimed that there were unrecorded bench conferences.
The trial court found
that opening statements and closing arguments were not recorded because counsel
did not so request. The court did not
recall any objections during opening statements, closing arguments or jury
selection. However, the trial court
noted that the court reporter was available for all phases of the trial and had
there been an objection, the court reporter would have been requested to take
it down and the court would have resolved the objection on the record. In this case, however, nothing was reported
because there were no objections during the unrecorded proceedings. These findings are not clearly erroneous in
light of the testimony adduced at the postconviction motion hearing and the
trial court's own recollection of the trial.
We reject Saxon's
attempt to apply State v. Perry, 136 Wis.2d 92, 401 N.W.2d 748
(1987), to this case because the cases are factually dissimilar. Here, certain portions of the trial were not
recorded. In Perry, the
court reporter's notes of portions of the jury trial were lost and could not be
reconstructed in their entirety. Id.
at 96, 401 N.W.2d at 750. The Perry
court discussed the importance of a transcript for postconviction proceedings
and noted that the lack of a full transcript (or a functionally equivalent
substitute) implicates the right to a meaningful appeal. Id. at 99, 401 N.W.2d at
751. However, the court also noted:
An inconsequential omission or a slight
inaccuracy in the record which would not materially affect appellate counsel's
preparation of the appeal or which would not contribute to an appellate court's
improper determination of an appeal do not rise to such magnitude as to require
ipso facto reversal. Error in
transcript preparation or production, like error in trial procedure, is subject
to the harmless-error rule.
Id. at
100, 401 N.W.2d at 752.
The foregoing
observation is dispositive of Saxon's claim on appeal. In light of the trial court's finding in
this case that no material matters were omitted from the record due to the
failure to record opening statements, closing arguments, jury selection and
bench conferences, the lack of a complete trial transcript did not materially
affect postconviction proceedings.
Saxon has not demonstrated that had the full trial been recorded,
reviewable error would have been apparent.
See id. at 101, 401 N.W.2d at 752. We conclude that Saxon has not demonstrated
that he was prejudiced by counsel's failure to have all portions of the trial
recorded. See State v.
Moats, 156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990).
Finally, Saxon argues
that trial counsel should have sought severance of the bail jumping charge from
the kidnapping and sexual assault charges for trial. The bail jumping charge arose out of Saxon's commission of kidnapping
and sexual assault while on bond for unrelated misdemeanor offenses. We need not address whether counsel's
performance was deficient if we can conclude that Saxon was not prejudiced. Id.
In its findings of fact
on Saxon's postconviction motion, the trial court found that any prejudice from
the failure to sever "was really quite minimal." At trial, the State asked the court to take
judicial notice of the facts underlying Saxon's release on bond in Jefferson
County for two misdemeanor matters, that he was required not to commit any
crime and that the bond was in effect at the time of the offenses in this
case. The court did so.
Severance is not
warranted if there would be little prejudice resulting from a trial of joined
charges. See State v.
Bettinger, 100 Wis.2d 691, 696, 303 N.W.2d 585, 588 (1981). When evidence on all counts is admissible in
separate trials, the risk of prejudice arising from joinder is not
significant. Id. at 697,
303 N.W.2d at 588. Here, evidence of
kidnapping and sexual assault would have been admissible in a separate bail
jumping trial to prove that Saxon committed these crimes while on bond. In the joint trial, the minimum amount of
evidence of bail jumping was presented.
We conclude that the
bare-bones presentation of evidence supporting the bail jumping charge did not
prejudice Saxon. Although the jury
learned the nature of the pending misdemeanor charges in its instructions,[1]
there was no evidence presented as to the manner in which those crimes were
committed. Because no attention was
focused on the substance or details of the pending charges, we discern no
prejudice arising from counsel's failure to seek severance. See Moats, 156 Wis.2d at 101,
457 N.W.2d at 311.
By the Court.—Judgments
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.