COURT OF APPEALS DECISION DATED AND RELEASED November
28, 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, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0283-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT I
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
KELVIN
GRIFFIN,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for Milwaukee County: JEFFREY A. WAGNER, Judge. Affirmed.
Before
Wedemeyer, P.J., Sullivan and Fine, JJ.
PER
CURIAM. Kelvin Griffin appeals from a
judgment entered after he pled guilty to one count of kidnapping, while armed,
as party to a crime; four counts of first-degree sexual assault, while armed,
as party to a crime; two counts of first-degree sexual assault, while armed;
and one count of armed robbery, party to a crime, contrary to §§ 940.31,
939.63, 939.05, 940.225(1)(c), and 943.32(1)(a), Stats. He also
appeals from an order denying his postconviction motions, which alleged that he
received ineffective assistance of trial counsel and an unduly harsh
sentence. Griffin claims: (1) that he did not receive effective
assistance of trial counsel and that the trial court erred when it denied this
claim without holding a Machner[1]
hearing; and (2) that the sentence imposed was unduly harsh.[2] Because there is no evidence that the
representation he received prejudiced the outcome and a Machner
hearing was not required, and because the sentence was not unduly harsh, we
affirm.
I. BACKGROUND
On
September 9, 1993, Dawn R., the twenty-one-year-old victim, was walking to a
party to meet her husband. Griffin and
two juveniles approached her with the intent to rob her. Griffin possessed a firearm and threatened
the victim. She was ordered to remove
her clothing. Griffin grabbed her arm
and forced her to the side of a nearby house.
She was ordered to get down on her hands and knees and she was sexually
assaulted. She was then forced to
another area and assaulted repeatedly by each of the three young men. She was also repeatedly threatened that she
would be killed if she did not do what the men asked. The incident occurred over approximately a
fifty-minute-time-period.
After
Griffin and his friends left, Dawn was assisted by a homeowner in the
area. The homeowner gave her a robe to
wear and phoned police. Griffin and his
friends were subsequently arrested and charged. Griffin, who was seventeen years old at the time, was waived into
adult court. His friends were
adjudicated in the juvenile system.
The
State offered to dismiss three of the counts if Griffin would plead guilty to
the remaining five counts. Griffin
rejected the offer and the case was scheduled for trial. On the date the trial was to commence,
Griffin informed the court that he wanted to plead guilty to all eight
counts. The State agreed to recommend
the same sentence it intended to make pursuant to the plea agreement, a prison
sentence of 60 to 75 years. The trial
court sentenced Griffin to 180 years in prison out of a possible maximum sentence
of 195 years.
Griffin
filed postconviction motions claiming he received ineffective assistance of
trial counsel, and that the sentence imposed was unduly harsh. The trial court denied the motion without a Machner
hearing, reasoning that there was no evidence that Griffin had been prejudiced
by the conduct of his trial counsel, and that the sentence was not unduly
harsh. Griffin now appeals.
II. DISCUSSION
A. Ineffective Assistance Claims.
Griffin's
ineffective assistance claims are essentially threefold: (1) that his trial counsel was
ineffective with respect to his conduct at the sentencing hearing;
(2) that the trial court erred in denying the motion without an
evidentiary hearing; and (3) that his trial counsel was ineffective with
respect to the plea agreement originally offered by the State. The trial court denied the motion because
Griffin failed to show that trial counsel's conduct prejudiced the
outcome. On this basis, the trial court
reasoned that it was not necessary to conduct an evidentiary hearing. We agree.
The
United States Supreme Court set out the two-part test for ineffective
assistance of counsel under the Sixth Amendment in Strickland v.
Washington, 466 U.S. 668 (1984).
The first prong of Strickland requires that the defendant
show that counsel's performance was deficient.
Id. at 687. This
demonstration must be accomplished against the “strong presumption that counsel
acted reasonably within professional norms.”
State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d
845, 848 (1990). The second Strickland
prong requires that the defendant show that counsel's errors were serious
enough to render the resulting conviction unreliable. Strickland, 466 U.S. at 687. In reviewing the trial court's decision, we
accept its findings of fact, its “‘underlying findings of what happened,’”
unless they are clearly erroneous, while reviewing “the ultimate determination
of whether counsel's performance was deficient and prejudicial” de novo. Johnson, 153 Wis.2d at 127-28,
449 N.W.2d at 848. Further, we review
the trial court's denial of a Machner hearing de novo. State v. Toliver, 187 Wis.2d
346, 360, 523 N.W.2d 113, 118 (Ct. App. 1994).
We
address first whether trial counsel's conduct with respect to sentencing
constitutes ineffective assistance.
Specifically, Griffin claims that:
trial counsel failed to inform the court of Griffin's uncounseled
reaction to these offenses prior to being taken into custody; trial counsel
failed to provide the court with any explanation for Griffin's conduct or offer
insight into Griffin's character; trial counsel failed to retain an expert to
evaluate Griffin to determine whether he is “paraphilic” and to evaluate his
potential for rehabilitation; trial counsel failed to inform Griffin's parents
that they could make a statement to the court at sentencing; trial counsel
failed to prepare Griffin for his allocution at sentencing; and trial counsel
did not discuss sentencing strategy with Griffin.
The
trial court addressed each allegation, concluding that trial counsel's failure
to engage in the conduct referenced above did not affect the sentencing. The trial court reasoned that the conduct
that Griffin alleges as being deficient performance was essentially cumulative
to material already contained in the record, either in the form of the
presentence report, and letters received from Griffin, Griffin's mother and
other family members. Accordingly, it
concluded that the absence of the materials/statements did not affect the
result of the proceedings. We agree.
The
last allegation, that trial counsel did not discuss sentencing strategy with
Griffin, is refuted by the plea questionnaire and waiver of rights form in the
record. These forms, which Griffin acknowledged
that he read and understood, discussed the ramifications of entering a guilty
plea. Griffin also admitted that he
understood that the judge is not bound by any plea agreement or by the State's
sentence recommendation when imposing sentence.
We
conclude that Griffin has not alleged a valid claim for ineffective assistance
with respect to the conduct of his trial counsel regarding the sentencing
hearing.
We
next address whether the trial court erred in refusing to hold a Machner
hearing. A trial court must hold an
evidentiary hearing on ineffective assistance of counsel claims if a defendant
alleges sufficient facts in his motion to raise a question of fact for the
court. Toliver, 187
Wis.2d at 360, 523 N.W.2d at 118 (citation omitted). Because of the two-prong Strickland test, the
defendant must raise a question of fact as to both prongs, i.e., whether his
counsel's performance was deficient, and whether the deficient conduct
rendered the resulting conviction unreliable.
Although Griffin raised a question of fact as the performance prong, he
failed to raise a question of fact as to the prejudice prong. His motion did not allege specific facts to
show that additional argument from counsel at sentencing, or better preparation
by counsel for the sentencing hearing, or additional discussion regarding the
plea agreement would have altered the outcome of this case. The trial court explained in its decision
denying the postconviction motion that its decision was based on the gravity of
the offense and the need to protect the public. The trial court indicated that even if trial counsel had provided
the information that Griffin alleges should have been provided, it would not
have affected sentencing. Accordingly,
it was not erroneous to refuse to hold an evidentiary hearing because Griffin
failed to raise a question of fact with respect to the prejudice prong of the
ineffective assistance test.
Finally,
Griffin claims he received ineffective assistance because his trial counsel
inadequately advised him with respect to a plea offer made by the State. The allegation in Griffin's motion papers in
this regard was:
Mr. Griffin also requests that he be allowed to amend
this motion if warranted by his appellate counsel's ongoing investigation. Specifically, Mr. Griffin will allege that
his trial counsel's performance was deficient either because counsel advised
Mr. Griffin to reject the state's offer to dismiss and read-in counts 3, 4 and
7, or because counsel failed to advise Mr. Griffin to accept the state's offer,
if either allegation can be substantiated.
The motion was filed on December 28, 1994, and the trial
court issued its decision on January 17, 1995.
During that time, Griffin did not submit an amendment to actually make
this allegation. He did not submit an
affidavit swearing that his trial counsel advised him to reject the State's
offer or that his trial counsel failed to advise him of the offer. Because this allegation was never actually
made at the trial court level, we reject it.
See Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287
N.W.2d 140, 145-46 (1980) (we generally will not review issues raised for the
first time on appeal).[3]
B. Unduly Harsh Sentence Claim.
Griffin
claims that the sentence imposed of 180 years in prison out of a potential
maximum of 195 years constitutes an unduly harsh sentence. Although we note that a 180 year prison term
is long, we agree with the trial court that the sentence was not unduly
harsh.
Griffin
admits that the trial court did not erroneously exercise its discretion in
imposing sentence—that it considered all the appropriate factors. See State v. Harris,
119 Wis. 2d 612, 623-24, 350 N.W.2d 633, 639 (1984) (The sentencing court must
consider three primary factors; 1) the gravity of the offense, 2) the
character of the offender and 3) the need to protect the public.). He argues, however, that the sentence
imposed was unduly harsh and excessive.
When
a defendant argues that his or her sentence is unduly harsh or excessive, we
will remand for resentencing “only where the sentence is so excessive and
unusual and so disproportionate to the offense committed as to shock public
sentiment and violate the judgment of reasonable people concerning what is
right and proper under the circumstances.”
Ocanas v. State, 70 Wis. 2d 179, 185, 233 N.W.2d 457, 461
(1975).
Griffin
argues that his sentence satisfies this standard because: (1) his co-actors, who were 13 years
old and 15 years old at the time, will only be under supervision until age 21;
(2) the 180 year sentence is meaningless because he will not live long enough
to serve 180 years; (3) the multiple crimes committed were closely related and
occurred in a short time span; (4) the trial court did not have certain
information at the time of sentencing regarding Griffin's psychological
evaluation; (5) the trial court applied non-applicable aggravating
circumstances in imposing the sentence; (6) the trial court did not consider
applicable mitigating circumstances; and (7) Griffin eventually told his
co-actors to leave the victim alone. We
are not persuaded that any of these factors transform the sentence that Griffin
received into one that “shocks public sentiment and violates the judgment of
reasonable people concerning what is right and proper.”
Our
conclusion is based on the following grounds:
(1) The
sentence is within the limits of the maximum sentence. State v. Daniels, 117
Wis.2d 9, 22, 343 N.W.2d 411, 417-18 (Ct. App. 1983) (a sentence within the
limits of the maximum sentence is not so disproportionate that it shocks the
public sentiment).
(2) Griffin
and his co-actors are not similarly situated and, therefore, the disparity of
the sentences between them is irrelevant.
They are not similarly situated because Griffin is an adult.
(3) The
180 year sentence is not meaningless.
Griffin will be eligible for parole when he is 62 years old. See 304.06(1)(b), Stats.
(4) The
crimes, although closely related, were shockingly savage and entirely devoid of
even the most elemental positive human instincts.
(5) Griffin's
remaining arguments are rejected for those reasons expressed by the trial court
in its order denying his postconviction motions.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[2] Griffin also claims that his request for new
trial counsel was ignored, and that the judgment should be reversed “in the
interests of justice.” We summarily
reject both claims. Griffin waived his
claim regarding new counsel when he entered his guilty pleas, see State v. Skamfer,
176 Wis.2d 304, 312 n.2, 500 N.W.2d 369, 372 n.2 (Ct. App. 1993), and a §
752.35, Stats., “interests of
justice claim” does not apply to a case in this procedural posture. See § 752.35, Stats.
[3] We further decline to address Griffin's
argument that he received ineffective assistance of trial counsel under the
Wisconsin Constitution because he does not submit any Wisconsin authority post-Strickland
v. Washington, 466 U.S. 668 (1984) in which the Wisconsin Supreme court
actually applied a different standard than that articulated in Strickland. See State v. Pettit,
171 Wis.2d 627, 646-47, 492 N.W.2d 633, 642 (Ct. App. 1992) (arguments that are
not supported by legal authority will not be considered).