District II
July 24, 2013
To:
Hon. James G. Pouros
Circuit Court Judge
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095
Theresa Russell
Clerk of Circuit Court
Washington County Courthouse
P.O. Box 1986
West Bend, WI 53095-1986
Mark Bensen
District Attorney
Washington County
P.O. Box 1986
West Bend, WI 53095-7986
Jeffrey J. Kassel
Assistant Attorney General
P. O. Box 7857
Madison, WI 53707-7857
Charles S. McNeal
Green County Jail
P.O. Box 473
Monroe, WI 53566-0473
You are hereby notified that the Court has entered the following opinion and order:
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State of Wisconsin v. Charles S. McNeal (L.C. #2002CF243) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
Charles S. McNeal appeals from
circuit court orders denying his motion for production of transcripts and
motion for reconsideration. 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 affirm the orders of the circuit court.
In 2002, McNeal was charged with (1) possession with
intent to deliver between five and fifteen grams of cocaine as a party to a
crime, as a second or subsequent offense; and (2) possession of THC as a
second or subsequent offense. Pursuant
to a plea agreement, he entered a guilty plea to the reduced charge of
possession of cocaine with intent to deliver.
The THC possession count was dismissed.
In 2012, McNeal filed a motion for production of
transcripts of “the initial appearance; preliminary hearing; arraignment; plea
hearing, pre-trial motion and conferences, etc.” Attached to the motion was a “rough draft” of
the arguments he wished to raise in a postconviction motion. In it, McNeal alleged that the criminal
complaint was insufficient to demonstrate probable cause that he possessed the cocaine
and that the THC charge was deficient because the complaint failed to allege
that he lacked a prescription to possess THC.
McNeal further alleged that his trial counsel was ineffective for
failing to challenge the complaint.
The circuit court entered an order denying McNeal’s
motion, which stated that “[t]he time for appeals in this case expired long
ago.” McNeal subsequently filed a motion
for reconsideration, which the court also denied. This appeal follows.
On appeal, McNeal contends that the circuit court
erroneously exercised its discretion when it denied his motion for production
of transcripts because, while the time for filing a direct appeal had expired,
he was not time-barred from filing a Wis.
Stat. § 974.06 motion. He
also contends that he asserted sufficient reasons for requesting the
transcripts.
We agree with McNeal that the circuit court did not
apply the proper legal standard to his motion for production of transcripts. As McNeal correctly points out, there is no
time limit on filing a motion for postconviction relief under Wis. Stat. § 974.06. See
State
v. Brunton, 203 Wis. 2d 195, 207, 552 N.W.2d 452 (Ct. App.
1996). However, it is not necessary to
remand this case to the court because the record conclusively demonstrates that
McNeal is not entitled to the free transcripts he seeks. See
State
v. Bentley, 201 Wis. 2d 303, 318, 548 N.W.2d 50 (1996).
An indigent defendant may be entitled to waiver of the
cost of the transcripts if he or she has an arguably meritorious claim. See
State
ex rel. Girouard v. Circuit Court for Jackson County, 155 Wis. 2d
148, 159, 454 N.W.2d 792 (1990). However,
“a meritless assertion by a putative appellant will not furnish a foundation
for a judicially ordered waiver of fees.”
Id. Whether a claim has
arguable merit is a question of law that this court reviews de novo. State ex rel. Hansen v. Circuit Court for
Dane County, 181 Wis. 2d 993, 998, 513 N.W.2d 139 (Ct. App. 1994).
As noted, McNeal’s reasons for requesting the
transcripts relate to two arguments he wished to raise in a postconviction
motion. First, he alleged that the
criminal complaint failed to establish probable cause on either of the two
counts with which he was charged. Second,
he alleged that his trial counsel was ineffective for failing to challenge the sufficiency
of the complaint.
Because McNeal’s guilty plea waived all
non-jurisdictional defects and defenses, his challenge to the sufficiency of
the criminal complaint cannot be reviewed directly on its merits. Consequently, his challenge would properly be
brought as a claim of ineffective assistance of counsel. See
State
v. Carprue, 2004 WI 111, ¶47, 274 Wis. 2d 656, 683 N.W.2d 31. To establish such a claim, McNeal would have
to show both that his trial counsel’s performance was deficient and that he
suffered prejudice as a result. Strickland
v. Washington, 466 U.S. 668, 687 (1984).
Here, the record conclusively demonstrates that trial
counsel was not ineffective for not moving to dismiss the cocaine possession count. By alleging that police found cocaine in the
front seat area of the vehicle in which McNeal was a front seat passenger, the criminal
complaint contained sufficient facts “to allow a reasonable person to conclude
that a crime was probably committed and that the defendant probably committed
it.” State v. Reed, 2005 WI 53, ¶12, 280 Wis. 2d 68,
695 N.W.2d 315. Thus, McNeal’s trial
counsel did not perform deficiently by failing to file a motion to dismiss the
count. See State v. Wheat, 2002 WI
App 153, ¶14, 256 Wis. 2d 270, 647 N.W.2d 441 (“Failure to raise an issue
of law is not deficient performance if the legal issue is later determined to
be without merit.”). Even if this
court were to conclude that counsel’s performance was deficient, McNeal cannot show
prejudice because any insufficiency as to that count could have been readily cured by the State.[2]
The record also conclusively demonstrates that trial
counsel was not ineffective for not moving to dismiss the THC possession
count. Although McNeal suggests that the
complaint was deficient for failing to allege that he lacked a prescription to
possess THC, he is mistaken. The lack of
a prescription is not an element of the offense. See
State
v. Harris, 190 Wis. 2d 718, 723, 528 N.W.2d 7 (Ct. App. 1994); WIS
JI-CRIMINAL 6030. Accordingly, McNeal’s
trial counsel did not perform deficiently for failing to file a meritless
challenge to the THC possession count. See Wheat, 256 Wis. 2d 270,
¶14. Moreover, McNeal cannot show
prejudice because the THC possession count was ultimately dismissed.
Upon the foregoing reasons,
IT IS ORDERED that the orders of the circuit court are
summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2011-12 version.
[2] If McNeal’s attorney had successfully challenged the sufficiency of the complaint as to the cocaine possession count, the State could have refiled the complaint to provide additional factual allegations linking McNeal to the cocaine. For example, at the preliminary hearing, the investigating officer testified that he observed a bag of cocaine in plain view on the floor of the front passenger side of the vehicle where McNeal was sitting.