COURT OF APPEALS DECISION DATED AND RELEASED October 10, 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. 95-2903-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WALTER E. CLINE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Sauk County: JOHN W. BRADY, Judge. Affirmed.
Before Dykman, P.J.,
Vergeront, J., and Robert D. Sundby, Reserve Judge.
PER
CURIAM. Walter Cline appeals from a judgment convicting him on
fourteen counts of third-degree sexual assault. He also appeals from an order denying his motion for
postconviction relief. The issue is
whether Cline should receive a new trial because he received ineffective
assistance from trial counsel. Because
Cline failed to prove that counsel's omission prejudiced him, we affirm.
Six days before Cline's
trial, the prosecutor offered to recommend a seven- to eight-year prison
sentence, and drop nine counts, if Cline pled no contest to the remaining five
counts. Cline refused the proposal,
instead offering to plead no contest if extortion charges were substituted for
sexual assault counts. The prosecutor
refused Cline's counteroffer and the case went to trial. The jury convicted him on all fourteen
counts, and he received a thirty-year prison sentence.
At the time of trial,
Cline was serving probation for a 1985 sexual assault conviction in Texas. At the postconviction hearing on Cline's
ineffective assistance of counsel motion, Cline testified that he wanted to
know the effect of a Wisconsin sexual assault conviction on his Texas probation
status before he agreed to plead no contest.
The Texas conviction carried a maximum penalty of ninety-nine years, and
Cline stated his fear that Texas would have revoked his probation and sentenced
him to the equivalent of a life sentence based on his Wisconsin conviction.
Consequently, the day
after the prosecutor's offer, counsel tried once to call the Texas prosecutor
in Cline's case, but could not reach him.
Counsel did not try again and did not receive a return call from Texas until
well after the trial. As it turned out,
Cline's Texas probation was revoked.
With a joint recommendation from the prosecutor and Cline for a
five-year prison term, the trial court in Texas imposed a six-year term
concurrent with the Wisconsin sentence.
Cline argued that had he
known that Texas authorities would agree to a relatively lenient approach to
his revocation, he would have accepted the prosecutor's plea bargain and
avoided the thirty-year sentence.
Counsel's failure to obtain that information on his behalf was
therefore, in his opinion, ineffective and prejudicial. The trial court disagreed, resulting in this
appeal.
To prove ineffective
assistance of counsel, the defendant must show not only that counsel's
performance was deficient, but that counsel's errors or omissions prejudiced
the defense. State v. Pitsch,
124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). Prejudice results when there is a reasonable probability that but
for counsel's errors the result of the proceeding would have differed. Id. at 642, 369 N.W.2d at 719. Whether counsel's representation was
deficient and whether it was prejudicial to the defendant are questions of
law. Id. at 634, 369
N.W.2d at 715.
Cline failed to
establish that he was prejudiced when counsel failed to contact the Texas
prosecutor. Cline's argument has two
essential premises: that he would have
accepted the proposed plea bargain had he known of the Texas prosecutor's
intentions, and that those intentions were benign. However, the trial court expressly found, as a matter of credibility,
that Cline never intended to plead no contest to sexual assault because he
believed he could convince the jury that the sexual contact with the victim was
consensual. That credibility
determination is not subject to review.
Turner v. State, 76 Wis.2d 1, 18, 250 N.W.2d 706, 715
(1977). Without a finding that Cline
would have pled no contest with additional information, he cannot demonstrate
prejudice from counsel's failure to provide that information.
As for the second
premise, the Texas prosecutor testified that he was willing to recommend a
shorter, concurrent sentence in Texas only after Cline received his thirty-year
sentence here. Had he received a
shorter Wisconsin sentence, the prosecutor might have recommended a longer one
in Texas. Again, Cline has not shown
prejudice because he has not shown that what counsel might have learned from
Texas would have induced him to plead no contest.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.