State Of Wis. v. Bell, Appeal No. 2009AP2281

• Decision Date: 09 February 2011
• Docket Number: Cir. Ct. No. 2003CF1016,Appeal No. 2009AP2281
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Freeman Earl Bell, Jr., defendant-appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,

v.Freeman Earl Bell, Jr., defendant-appellant.

Appeal No. 2009AP2281

Cir. Ct. No. 2003CF1016

STATE OF WISCONSIN

IN COURT OF APPEALS

DISTRICT II

DATED AND FILED: February 9, 2011

A. John Voelker

Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from an order of the circuit court for Racine County: GERALD P. PTACEK, Judge. Affirmed.

Before Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1 PER CURIAM. Freeman Earl Bell, Jr., appeals from an order denying his pro se WIS. STAT. § 974.06 (2007-08), ¹ postconviction motion towithdraw his guilty plea. He argues that he was entitled to the appointment of counsel under WIS. STAT. § 974.03(3)(b), that he has sufficient reasons why his claims were not previously raised, that he was denied the effective assistance of trial counsel because counsel failed to meet with and interview him, induced his plea by misrepresenting that he would receive the same sentence as a codefendant, and failed to investigate grounds to suppress evidence, that his right to due process was violated by the prosecutor's failure to disclose a police interview report, and that his postconviction counsel abandoned him. We reject his claims and affirm the order denying his motion for postconviction relief.

¶2 Bell entered a guilty plea to party to the crime of armed robbery with use of force arising from a 2003 bank robbery.² Bell was appointed postconviction counsel after sentencing. A motion for postconviction relief sought sentence modification. The motion was denied on March 2, 2006, and no appeal was taken.

¶3 In June 2008, Bell filed a pro se motion for postconviction relief under WIS. STAT. § 974.06. Three times he moved for the appointment of counsel. Three times the trial court declined to appoint counsel. In May 2009 Bell filed two motions to amend his postconviction motion. An evidentiary hearing was conducted on Bell's motion during which postconviction counsel, trial counsel, and Bell testified. The trial court denied Bell's motion concluding that his claims were not supported by the facts. The specific findings by the trial court will be set forth as necessary to address Bell's claims.

APPOINTMENT OF COUNSEL

¶4 Bell has no constitutional right to the appointment of counsel for a WIS. STAT. § 974.06 motion. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 649, 579 N.W.2d 698 (1998). Section 974.06(3)(b), provides: "If it appears that counsel is necessary and if the defendant claims or appears to be indigent, [the court shall] refer the person to the state public defender for an indigency determination and appointment of counsel under ch. 977." Here the trial court did not make a determination of whether a referral should be made. It offered Bell the chance to ask the state public defender to provide representation and Bell indicated that he wanted to pursue a request by personal letter to the state public defender. The state public defender refused to appoint counsel for Bell.

¶5 Bell argues that upon the state public defender's refusal to appoint counsel, the trial court erroneously exercised its discretion not appointing counsel itself. See State v. Lehman, 137 Wis. 2d 65, 76, 403 N.W.2d 438 (1987) ("The trial court has the authority to appoint counsel whenever in the exercise of its discretion it deems such action necessary."). When there is no constitutional right to the appointment of counsel, "[a] court may use its inherent discretionary authority to appoint counsel in furtherance of the court's need for the orderly and fair presentation of a case." Joni B. v. State, 202 Wis. 2d 1, 11, 549 N.W.2d 411 (1996). See State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123, 137-38, 465 N.W.2d 625 (1991) (the trial court's inherent authority to appoint counsel is not based on an individual's constitutional right to counsel, but rather based on the need to serve the interests of the trial court).

¶6 When the trial court addressed Bell's first motion for the appointment of counsel, Bell had already filed a lengthy postconviction motionwhich included a detailed discussion of five issues in factual context. Attached to the postconviction motion were letters Bell purportedly sent to his postconviction counsel identifying at least one issue he thought should be pursued and a letter to the state public defender's office explaining his complaints about postconviction counsel. Bell had also filed a motion for the appointment of counsel, motion for subpoenas to be issued to trial and postconviction counsel, and a motion to produce himself for personal appearance at the hearing. The trial court had determined that Bell's postconviction motion was sufficient to entitle him to a Machner³ hearing. Based on its examination of Bell's pleadings the trial court found it clear that Bell had an idea about what he felt was not done by trial counsel and how he was deprived of his right to representation. This was tantamount to a finding that the court would not have difficulty in understanding Bell's claims without the advocacy of counsel.

¶7 Bell's second motion for the appointment of counsel argued he needed counsel because he had limited access to the law library and a learning disability, no high school education, and limited knowledge of the law.⁴ In addressing the second motion for the appointment of counsel the trial court recognized that the Machner hearing would provide Bell an opportunity to fleshout the record and that his former attorneys would provide helpful information. The court found that it had a sufficient understanding of what issues Bell wanted to raise and it was satisfied that Bell would be able to ask questions of the attorneys to bring the necessary information to light.

¶8 A third motion for the appointment of counsel was filed before the evidentiary hearing. The motion indicated that Bell has only a sixth-grade reading level. For the first time the motion acknowledged that Bell had been assisted by "inmate law clerks" in preparing motions filed with the court. Bell suggested that because others had prepared his motions, he was unfamiliar with the legal ramifications of his claims.⁵ When the motion was heard, the trial court asked Bell if anything had changed between the filing of his third motion for the appointment of counsel and the court's last denial. Bell replied that he had added new issues to amend his postconviction motion and had filed a motion to compel postconviction counsel to turn over discovery. The changes did not cause the trial court to reconsider its previous denial of counsel. Once again the court recognized that the presence of both trial and postconviction counsel at the evidentiary hearing would answer questions about what happened.

¶9 In addressing all of Bell's motions for the appointment of counsel the trial court found that the appointment of counsel was not necessary for the court's need for an orderly and fair presentation of the case. The court applied the proper standard. The court properly exercised its discretion in refusing to appoint counsel for Bell on his WIS. STAT. § 974.06 motion.

SUFFICIENT REASON

¶10 Under WIS. STAT. § 974.06(4), Bell must establish a sufficient reason why the claims in his § 974.06 motion were not raised in his first postconviction motion. See State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 517 N.W.2d 157 (1994) (all grounds for relief must be raised in a defendant's original, supplemental or amended motion); State ex rel. Dismuke v. Kolb, 149 Wis. 2d 270, 274, 441 N.W.2d 253, 254 (Ct. App. 1989) ("[A] prisoner's failure to assert a particular ground for relief in an initial postconviction motion bars the prisoner's assertion of the ground in a later motion, in the absence of justification for the omission."). Bell advances the absence of a personal and knowing waiver of the issues and the abandonment by and ineffectiveness of his postconviction counsel as sufficient reason why his claims were not raised in his first postconviction motion.⁶ We need not address his arguments because the trial court did not impose the procedural bar to Bell's claims. The trial court conducted a Machner hearing and ruled on the merits without considering whether Bell had advanced a sufficient reason.

INEFFECTIVE TRIAL COUNSEL

¶11

To succeed on a claim of ineffective assistance of counsel, a defendant must show both that counsel's representation was deficient and that the deficiency was prejudicial. Strickland [v. Washington, 466 U.S. 668,] 687[(1984)]. In order to establish deficient performance, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. A defendant must establish that counsel's conduct falls below an objective standard of reasonableness. Id. at 687-88; State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. However, "every effort is made to avoid determinations of ineffectiveness based on hindsight... and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms." State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990). To prove constitutional prejudice, "the defendant must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Thiel, 264 Wis. 2d 571, ¶20 (quoting Strickland, 466 U.S. at 694).

Appellate review of an ineffective assistance of counsel claim presents a mixed question of fact and law. State v. McDowell, 2004 WI 70, ¶31, 272 Wis. 2d 488,

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