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COURT OF APPEALS DECISION DATED AND RELEASED October 8, 1996 |
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 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. 95-3200
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
State of Wisconsin,
Plaintiff-Respondent,
v.
Walter Szymanski,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
DIANE S. SYKES, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
PER CURIAM. Walter Szymanski appeals from the trial
court order denying his postconviction motion.
Szymanski requested resentencing or, in the alternative, sentence
modification based on new factors. He
also contended that counsel was ineffective.
Szymanski argues that the trial court should have granted his request
for resentencing or, at the very least, should have granted an evidentiary
hearing. We affirm.
The background of this
case is summarized in this court's July 15, 1988 opinion and order, appended to
this decision, denying Szymanski's previous appeal challenging his
sentence. Szymanski again challenges
his sentence, now arguing: (1) the
trial court relied on alleged inaccurate information contained in the
presentence report; (2) trial counsel rendered ineffective assistance by
failing to provide him with the presentence report, thus denying him the chance
to rebut the alleged inaccurate information; and (3) a change in parole
policies constituted a new factor requiring resentencing.[1]
Szymanski first argues
that he was denied due process because the trial court relied on the
presentence report that, he contends, contained inaccurate information. Quoting United States ex rel. Welch v.
Lane, 738 F.2d 863, 865 (7th Cir. 1984), he argues that “‘a sentence
must be set aside where the defendant can show that false information was part
of the basis for the sentence.’”
(Emphasis added in appellant's brief.)
Due process requires
that a defendant be sentenced on the basis of true and correct
information. State ex rel.
LeFebre v. Israel, 109 Wis.2d 337, 345, 325 N.W.2d 899, 903
(1982). A defendant bears the burden of
proving by clear and convincing evidence that the challenged information was
inaccurate and that it produced prejudice.
State v. Littrup, 164 Wis.2d 120, 132, 473 N.W.2d 164, 168
(Ct. App. 1991).
Szymanski's sentencing
hearing included statements and recommendations from the victim, her father, a prosecutor
from each of the two counties where the assaults occurred, defense counsel, and
Szymanski. In the course of lengthy
comments, each prosecutor and defense counsel made several brief references to
the presentence. In addition to
specific references we will discuss, the trial court prefaced its sentencing
decision by commenting:
All right, at this time the Court will
incorporate the entire 19-page Presentence Report into my sentence, so that it
does not have to be repeated, let me just say there were many times where
various portions were alluded to, and I made note of that.
Therefore,
Szymanski contends that the trial court “thus expressly considered and relied
upon all of the presentence report's allegations in imposing sentence.”
(Emphasis added in appellant's brief.)
In his postconviction
motion, Szymanski challenged the accuracy of three portions of the presentence
regarding: (1) whether he exaggerated
the extent of his assistance to the Wisconsin Department of Justice as an informant
on drug use at a health club; (2) whether he made an obscene gesture toward a
young child in the victim's family; and (3) whether the fact that young females
continued to frequent his home reflected any “preference for young females.”
1. Assistance to the
Justice Department. According to
the presentence, for a number of years Szymanski assisted the Wisconsin
Department of Justice as an informant regarding drug use at a health club. Szymanski maintains that the presentence
“inaccurately reflected the nature and extent of [his] assistance ...,
asserting and permitting the conclusion that [he] was exaggerating his
involvement in order to obtain a lesser sentence.” As summarized by the trial court in its decision denying
Szymanski's postconviction motion:
The presentence writer interviewed both
Szymanski and the DOJ agent who was his contact when he was acting as an
“informant.” Based on these interviews,
the presentence writer essentially concluded that Szymanski was probably
overstating his involvement in the health club drug investigation. This is because Szymanski told the
presentence writer that his involvement with the DOJ agent continued for over
two years (although he admitted that for a year and a half “nothing was
happening” with the information he was providing to the agent.) The DOJ agent supposedly told the
presentence writer that his contact with Szymanski was more sporadic than
Szymanski implied, and consisted of two or three in-person contacts and five
phone calls. The DOJ agent did
acknowledge to the presentence writer the accuracy of Szymanski's information,
but essentially said it was not significant to the investigation in that none
of the arrests produced by the investigation resulted from Szymanski's
involvement. Because of these
discrepancies between Szymanski's version of his cooperation and the DOJ
agent's recollection, the presentence writer concluded that Szymanski was
exag[g]erating his involvement.
Szymanski now submits an affidavit of an
investigator who recently interviewed the same DOJ agent. The investigator indicates that the DOJ
agent told him that Szymanski's involvement with the DOJ did in fact continue
over a period of two years, but reconfirmed that that involvement was only
sporadic in nature after an initial six week period of “quite extensive”
activity. The agent apparently did not
modify his earlier opinion that Szymanski's information, while correct, did not
contribute to the results of the investigation.
On appeal, Szymanski
does not challenge this trial court summary.
Thus, any inaccuracy would relate essentially to nothing more than the
length of Szymanski's cooperation and the presentence writer's possible
implication that Szymanski exaggerated
the extent of his cooperation with the Justice Department. At the sentencing, however, although one of
the prosecutors briefly addressed this subject, the court never mentioned
it. Denying Szymanski's postconviction
motion, the trial court explained:
The alleged inaccuracy is so slight and
so collateral to the facts of the case as to be meaningless in the context of
Szymanski's sentencing.... [W]hether
or not Szymanski exa[g]gerated his
level of cooperation with the DOJ on a wholly unrelated drug investigation is
not terribly relevant to the sentencing equation.
...[T]he fact is that the defendant's
cooperation with the DOJ on the health club drug investigation -- whether he
overstated it or not -- is totally collateral to the proceedings in this
case.... [I]f the sentencing judge had
had the present information about Szymanski's cooperation with the DOJ before
him at the time of sentencing, it would have had no impact on his
decision. The transcript indicates that
while the sentencing judge incorporated into the record the entire presentence
and all other matters brought to his attention in the sentencing proceeding, he
did not mention, in his sentencing remarks, the DOJ investigation and any role
the defendant might have played in it.
The record is very clear that the sentencing judge was primarily concerned
about the seriousness of the defendant's conduct towards the fourteen-year old
victim, its impact on her and her family and the defendant's abuse of both his
position and the trust of this family....
I do not believe it is reasonable, based upon this record, to suggest
that the sentence would have been any different had the present information
about the defendant's role with the DOJ been available at the time of
sentencing. Accordingly, the defendant
has not shown that the alleged inaccuracies on this issue were either material
or were relied upon by the sentencing judge, nor has he shown that but for the
error of his counsel in not showing him the presentence, the result would have
been different.
We agree. Although Welch provides
support for Szymanski's assertion that resentencing is required where a
defendant establishes that false information formed even “part of the basis for
the sentence,” Welch, 738 F.2d at 865, Welch also
calls on a reviewing court “to determine whether the court gave the
misinformation ‘specific consideration,’ so that the information formed part of
the basis for the sentence.” Id.
at 866. Szymanski has offered nothing
to establish that the alleged inaccuracy was specifically considered at all or,
if it was, that it could have had any possible impact on the sentence. Thus, even assuming the inaccuracy Szymanski
asserts, we conclude that Szymanski has failed to establish prejudice.
2. Obscene Gesture. The sentencing court referred to the presentence
and asked Szymanski:
What about those two references to you grabbing
your genital area as somebody went by sticking out your tongue and licking your
lips, seductive obscene gestures referred to when Lisa went by one time or when
you drove past her house?
Szymanski
responded:
A comment on what I think you're referring to,
and that's when I was working out in the garage or by the garage or coming from
the neighbor's house, ..., and I stuck my tongue out once when they were
staring at me and we said words back and forth across the street. That was immature and that was wrong. That's all I can say. That happened a long time ago. I mean, it's been a year since these charges
have come, and it's been a year of daily thinking about all this.
The
sentencing court made no further comment on this subject and did not refer to
it when articulating the reasons for the sentence.
In
support of his postconviction motion, Szymanski submitted affidavits not
disputing the tongue gesture but attributing the obscene genital gesture to a
teenage neighbor. Szymanski offers no
authority, however, to support his apparent implicit theory: even when a defendant responsively replies
to a sentencing court's direct inquiry about information in a presentence, and
even when the sentencing court says nothing to suggest that it has disbelieved
or rejected the defendant's account, and even when the sentencing court makes
no further reference to the incident, the defendant still has been denied due
process by virtue of the court's reliance on the alleged inaccurate
information, and still has been denied effective assistance of counsel by
virtue of counsel's alleged failure to provide the presentence.
This theory makes no
sense. Although Szymanski also replied
to the sentencing court's inquiry that “I guess there is some things in that
Presentence Report I'm not privy to,” the fact remains that the sentencing
court disclosed the information to Szymanski and Szymanski commented on it. Under these circumstances, Szymanski has
offered nothing to establish any denial of due process.
3. Young Females. The presentence stated that the victim's
father advised that a neighbor of Szymanski could provide information about
young females continuing to frequent Szymanski's home and his “preference
towards younger females.” Szymanski
submitted affidavits asserting that the females were daughters of a neighbor
who were visiting for innocent reasons, and that two of them were adults. Once again, however, this area of alleged
inaccuracy was confronted at sentencing.
Defense counsel commented:
The
indication [in the presentence] that there are young girls coming in and out of
his house. Even today, I discussed with
him and he still has a very close relationship with a neighbor who has young
children. I have spoken to that
neighbor who verifies that for probably the last two months Mr. Szymanski had
essentially lived with him, ate with him, did the dishes with him and his
family, and that his young children have in fact, his teenage children have in
fact been in and out of Dr. Szymanski's home many, many times. So there may well be very significant
substance to that.
Here, again, the
sentencing court made no further comment indicating any disbelief or rejection
of counsel's account, and made no reference to this subject when articulating
the basis for the sentence.
Accordingly, as we have just explained, because the record establishes
that Szymanski, in fact, was confronted with and had the opportunity to respond
to the very information he now disputes, and because the record offers nothing
to suggest any reliance on inaccurate information, we reject Szymanski's claim.
Szymanski claims that
counsel failed to provide him with the presentence and, as a result, that he
was unable to respond to the alleged false statements or offer witnesses to
rebut them. Thus, he maintains that
counsel rendered ineffective assistance.
To prevail on a claim of
ineffective assistance, a defendant must establish both that counsel's
performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). If a
defendant fails to establish either deficient performance or prejudice, his
claim fails and, therefore, “[r]eview of the performance prong may be abandoned
‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of prejudice....’” State v. Moats,
156 Wis.2d 74, 101, 457 N.W.2d 299, 311 (1990) (quoting Strickland,
466 U.S. at 697). To establish
prejudice, a defendant must establish “a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland,
466 U.S. at 694.
Here, for the reasons we
have explained, even assuming counsel failed to provide Szymanski with the
presentence report, the sentencing was unaffected and, therefore, Szymanski has
not established that he was prejudiced by counsel's alleged deficient
performance.[2]
Szymanski also argues
that the trial court erred in denying sentence modification based on a new
factor. He contends that “the
sentencing court's view that [he] would move quickly through the system to
early parole was rendered erroneous by subsequent changes in Department of
Corrections regulations.” He submitted
affidavits to show that “[t]he effect of those changes was to extend
dramatically and mechanistically the time [he] would have to spend in Maximum
and Medium security before being eligible for reduction to Minimum and a
realistic possibility of release on parole.”
Szymanski points to the
comments of the Milwaukee County assistant district attorney, computing parole
eligibility dates and recommending a fifteen to thirty year sentence in part
because, even with such a sentence, “I don't think this defendant ... is going
to spend that much time in the prison systems.
And definitely not that much time in a maximum security facility.” Although the trial court acknowledged the
accuracy of the prosecutor's computation during the prosecutor's presentation
of his recommendation, the court did not refer in any way to Szymanski's
probable parole eligibility when it articulated its reasoning and pronounced
Szymanski's sentence.
In State v.
Franklin, 148 Wis.2d 1, 14, 434 N.W.2d 609, 613 (1989), the supreme
court held “that a change in parole policy cannot be relevant to sentencing
unless parole policy was actually considered by the circuit court.” The supreme court rejected the proposition
that a prosecutor's comments on parole eligibility, absent a sentencing court's
explicit reference to those comments, established such actual consideration:
[Franklin] asserts that, although the
circuit court did not explicitly consider parole board policy, the prosecutor
discussed parole policy and thus it was implicitly considered by the sentencing
judge.
....
In
this case ... the sentencing court never expressly considered parole
eligibility. It would be improper to
impute the thoughts of the prosecutor to the sentencing judge....
We do not read Kutchera [v. State,
69 Wis.2d 534, 230 N.W. 2d 750 (1975)], to imply that parole policy is
automatically relevant to a sentencing decision when it is mentioned, not by
the court, but by the prosecutor. In
order for a change in parole policy to constitute a new factor, parole policy
must have been a relevant factor in the original sentencing. It is not a relevant factor unless the court
expressly relies on parole eligibility.
If the court does base its sentence on the likely action of the parole
board, it has the power to protect its own decree by modifying the sentence if
a change in parole policy occurs.
Because it was not expressly considered by the court in sentencing,
parole policy was not relevant to the imposition of this sentence.
Franklin, 148
Wis.2d at 14-15, 434 N.W.2d at 614 (footnote omitted).
Franklin
controls. Despite the prosecutor's comments,
the sentencing court did not “explicitly” or “expressly” consider parole
policy. Thus, we reject Szymanski's
claim that changes in parole policy constituted a new factor.[3]
Finally, Szymanski
argues that the trial court erred in resolving these issues without an
evidentiary hearing. An evidentiary
hearing often is required to resolve issues that turn on material disputed
facts. State v. Machner,
92 Wis.2d 797, 804, 285 N.W.2d 905, 908 (Ct. App. 1979). However, where “the record conclusively
demonstrates that the defendant is not entitled to relief, the trial court may
in the exercise of its legal discretion deny the motion without a
hearing.” Nelson v. State,
54 Wis.2d 489, 497-498, 195 N.W.2d 629, 633 (1972); see State v.
Bentley, 201 Wis.2d 303, 309-311, 548 N.W.2d 50, 53 (1996). In this case, although factual uncertainty
remains regarding counsel's alleged deficient performance and whether any
information in the presentence was inaccurate, no uncertainty attends the issue
of whether Szymanski's sentence was affected by any alleged error. The record is clear and, accordingly, the
trial court properly denied Szymanski's motion without an evidentiary hearing.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule
809.23(1)(b)4, Stats.
AN APPENDIX CONSISTING
OF THIS COURT'S EARLIER SUMMARY ORDER DATED JULY 15, 1988, HAS BEEN ATTACHED TO
THIS OPINION. THE APPENDIX CAN BE
OBTAINED UNDER SEPARATE COVER BY CONTACTING THE WISCONSIN COURT OF APPEALS.
COURT OF APPEALS
OF WISCONSIN
110 E. MAIN STREET, ROOM 715
POST OFFICE BOX 1688
MADISON, WISCONSIN
53701-1688
TELEPHONE: (608) 266-1880
FAX: (608) 267-0640
Marilyn L. Graves, Clerk
Court of Appeals
[1] The State does not concede
either that trial counsel failed to give Szymanski the opportunity to read the
presentence before sentencing or that the presentence contained inaccurate
information. The sentencing transcript
resolves neither issue. Early in the
proceeding, Szymanski commented that he had gone over the presentence with his
lawyer who further commented that there were no additions or corrections. Much later in the hearing, however,
Szymanski stated that there were “some things in that Presentence Report I'm
not privy to.”
Nevertheless, in this
appeal, the State has not challenged Szymanski's assertion that he could not
have litigated these issues in his original postconviction motion and appeal,
consistent with the requirements of State v. Escalona-Naranjo,
185 Wis.2d 168, 517 N.W.2d 157 (1994), because he was not given the opportunity
to read the presentence until after filing his first postconviction motion and
appeal.
[2] Moreover, the apparent insignificance of all three areas of alleged inaccuracy can be gleaned from this court's opinion in Szymanski's first appeal. None of these three alleged inaccuracies related in any way to either the factors Szymanski challenged or the factors this court concluded formed the basis for the sentencing.
[3] In his brief to this court, Szymanski also mentions that two other “new factors” justify resentencing: the information regarding his cooperation with the Department of Justice, and the information regarding the obscene gesture. He does not, however, offer any argument on these points other than those we have already rejected, or any separate theory under “new factor” analysis. Thus, we need not discuss them further. See Barakat v. DHSS, 191 Wis.2d 769, 786, 530 N.W.2d 392, 398 (Ct. App. 1995) (appellate court need not consider “amorphous and insufficiently developed” arguments).