District IV
June 13, 2014
To:
Hon. John W. Markson
Circuit Court Judge
Dane County Courthouse
215 South Hamilton, Br. 1, Rm. 6109
Madison, WI 53703
Carlo Esqueda
Clerk of Circuit Court
Room 1000
215 South Hamilton
Madison, WI 53703
Sarah Burgundy
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Matthew Moeser
Asst. District Attorney
Dane County District Attorneys Office
Rm. 3000
215 South Hamilton
Madison, WI 53703
Larry D. Sullivan 509354
Stanley Corr. Inst.
100 Corrections Drive
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
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2013AP371 |
State of Wisconsin v. Larry D. Sullivan (L.C. #2007CF985) |
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Before Lundsten, Sherman and Kloppenburg, JJ.
Larry Sullivan, pro se, appeals an order of the circuit court denying his postconviction motion for plea withdrawal. Based upon our review of the briefs and record, we conclude at conference that this case is appropriate for summary disposition. See Wis. Stat. Rule 809.21 (2011-12).[1] We summarily affirm.
Sullivan was convicted, after entering a no-contest plea, of possession of cocaine with intent to deliver, as a party to a crime. See Wis. Stat. §§ 939.05, 961.41(1m)(cm)3. Sullivan originally received probation with sentencing withheld. His probation was later revoked, and the circuit court sentenced him to three years of initial confinement and three years of extended supervision, to be served consecutively with a sentence in another case. Sullivan filed a motion to withdraw his plea based on ineffective assistance of trial counsel. The circuit court denied the motion after a Machner[2] hearing. Sullivan then filed a motion under Wis. Stat. § 974.06, alleging that his postconviction counsel was ineffective for failing to allege four additional claims of ineffective assistance of counsel. The circuit court denied the motion without a hearing, and Sullivan now appeals.
To establish an ineffective assistance of counsel claim, a defendant must show both that counsel’s performance was deficient and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Sullivan’s brief, the first three of his four ineffective assistance of counsel arguments relate to his assertion that he was not present at the drug house at the time of the raid that led to his arrest. However, because Sullivan pled to possession of cocaine with intent to deliver as a party to a crime, the State was not required to prove that Sullivan was at the house at the time of the raid. Wisconsin Stat. § 939.05(1) provides that anyone “concerned in the commission of a crime … may be charged with and convicted of the commission of the crime although the person did not directly commit it.” Under Wis. Stat. § 939.05(2), a person “concerned in the commission of the crime” is defined as someone who intentionally aids and abets or conspires to commit the crime.
The criminal complaint sets forth statements obtained from co-actors who identified Sullivan as the person who brought the cocaine base into the house and hid it. These facts were the basis upon which the State charged Sullivan as a party to the crime of possession of cocaine with intent to deliver—not whether or not Sullivan was present at the time of the raid. See Wis. Stat. §§ 939.05, 961.41(1m)(cm)3. Thus, Sullivan’s counsel was not ineffective for failing to move to dismiss the charge of possession with intent to deliver, as a party to a crime, even if Sullivan could have proven that he was not present at the drug house or that he was out of town when it was raided. Sullivan has not identified any other reason why the charge would reasonably have been dismissed. Thus, Sullivan is unable to establish prejudice and cannot succeed on his three claims of ineffective assistance of counsel for failure to have the charge dismissed.
Sullivan’s fourth claim of
ineffective assistance of counsel involves his trial counsel’s alleged failure
to move to dismiss Dane County Circuit Court case No. 2006CF1330 based on
deficiencies in the complaint. The
record in that case is separate from the record before us in the present
appeal, and the two cases have not been consolidated. Thus, the proceedings in 2006CF1330 are
outside the scope of this appeal, which is limited to the order on appeal and “all
prior nonfinal judgments, orders and rulings adverse to the appellant and
favorable to the respondent made in the action or proceeding.” Wis.
Stat. Rule 809.10(4).
IT IS ORDERED that the order is summarily affirmed under Wis. Stat. Rule 809.21(1).
Diane M. Fremgen
Clerk of Court of Appeals