State Of Wis. v. Prouty, 2009AP937-CR

Decision Date15 September 2010
Docket NumberNo. 2009AP1869-CR,No. 2009AP937-CR,2009AP937-CR,2009AP1869-CR
PartiesState of Wisconsin, Plaintiff-Respondent. v. Scott Prouty, d
CourtWisconsin Court of Appeals

A. John Voelker, J.

APPEAL from a judgment and orders of the circuit court for Waukesha County: LEE S. DREYFUS, JR., Judge. Affirmed.

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

PER CURIAM.

¶1 Scott Prouty pled guilty to three felony counts of injury by intoxicated use of a vehicle and one misdemeanor count of causinginjury by operating while intoxicated (OWI). See WIS. STAT. §§ 940.25(1)(a), 346.63(2)(a)1. (2007-08).1 He appeals pro se from the judgment entered upon those pleas and from the denial of various postconviction motions. He raises a host of issues on appeal, several of them waived by his guilty pleas. The remaining ones simply have no heft. We affirm.

¶2 Prouty's vehicle crossed the center line and ran head-on into a vehicle occupied by Russell Berg and his five-and eleven-year-old sons, Dakotah and Cameron, and his seven-year-old stepson, Brandon. Berg, who suffered serious multiple trauma, had to be extricated from his vehicle. The boys' injuries included multiple lacerations, broken bones and pelvic fractures. Brandon was in the ICU at Children's Hospital.

¶3 Prouty also was pinned in his vehicle with chest and leg injuries. Waukesha county sheriff's deputy Michael Powell noted that Prouty had slurred speech and bloodshot eyes. Prouty admitted drinking light beer, consuming "[t]oo much to remember." Before emergency personnel transferred Prouty to the hospital, Powell told them, but not Prouty, that Prouty was under arrest. Officers followed the ambulance to the hospital.

¶4 At the emergency room, Deputy Aaron Bogie found Prouty wearing an oxygen mask and being readied for transfer to the ICU. They spoke briefly. Bogie observed that Prouty had bloodshot, glassy eyes and slurred speech. As medical staff tended to Prouty, Bogie read him the Informing the Accused form, issued OWI citations and informed him he was under arrest. Neither Powell nor Bogie detected the odor of alcohol or performed field sobriety tests.

¶5 Prouty's blood alcohol level tested at 0.097 percent. The State charged him with six felony counts of injury by intoxicated use of a vehicle and one count each of causing injury by OWI and causing injury while operating with a prohibited alcohol concentration. Civil cases were filed about six months later.

¶6 Prouty filed a motion to suppress, citing lack of probable cause to arrest him, but did not claim a Miranda 2violation. Despite his injuries, he argued that the lack of sobriety testing allowed only a suspicion of intoxication. Powell conceded that he had not detected the odor of intoxicants but testified that Prouty smelled strongly of aftershave and the accident scene reeked of spilled oil, antifreeze and gasoline. Concluding that the totality of the other facts and observations supplied sufficient probable cause to arrest, the trial court denied the motion.

¶7 Prouty pled guilty to the three felonies relating to Berg, Cameron and Brandon and to causing injury by OWI. The remaining counts were dismissed outright. An unrelated pending disorderly conduct case was dismissed and read in. On two of the felony charges, the court ordered consecutive sentences of three years' initial confinement and five years' extended supervision—a total of six and ten years, respectively. It withheld sentence on the remaining felony and the misdemeanor and ordered six years' probation on each, consecutive to the other imprisonment and concurrent to each other for a total sentence of twenty-twoyears. The court found him eligible for the Earned Release Program (ERP). After a series of hearings, restitution was set at $75,212.27, with twenty-five percent of his prison wages to be applied toward the obligation.

¶8 Having discharged his second attorney by this time, Prouty filed a pro se postconviction motion seeking to withdraw his plea and for resentencing or a new trial. He alleged procedural errors, "errant plea(s)," defects in the sentence, new factors and "ineffective counsel(s)." The court set a Machner3hearing. Prouty's first attorney successfully moved to quash the subpoena as to him.

¶9 Before the hearing could take place, Prouty filed a flurry of pro se motions. He sought recusal; judicial substitution; postconviction discovery seeking the victims' prior medical records; plea withdrawal; sentence modification; withdrawal of the ineffectiveness claim against his first counsel; ineffective assistance of his second counsel; removal of the presentence investigation report (PSI) from his prison file for claimed inaccuracies; correction of transcript records; and discontinuation of restitution. The common thread in many of the motions was that the boys' injuries did not amount to "great bodily harm" under WIS. STAT. §§ 940.25(1)(a) and 939.22(14) and thus did not warrant the sentence imposed. After numerous hearings, all motions were denied.

¶10 Prouty moved for reconsideration of the denial of his motion to modify sentence. Citing State v. Hall, 2002 WI App 108, ¶¶7-8, 255 Wis. 2d 662, 648 N.W.2d 41, the motion admonished the court to "READ the Brief and review the cases cited" and to "[p]lease use the Law to reconsider." At the hearing on themotion, Prouty argued that he essentially was denied his right of allocution because he thought he was limited to expressing remorse. He claimed the court should have told him it was his "last chance to represent [him]self," and that this would have been "an excellent time" to argue points with which he disagreed. Prouty also asserted that the court's initial explanation of why it ordered consecutive sentences bore "some degree of vagueness." The court's reexplanation spanned eight transcript pages.

211 Next, citing the State's blood alcohol curve exhibit from the civil case, Prouty argued that his BAC at testing could have been 0.078 percent if he were in a rising blood alcohol curve at the time of the accident. The court noted the presumed accuracy of the result but pointed out that he also might have been in a declining curve, with an even higher BAC at the time of the accident.

212 The court next addressed Prouty's motion for correction of the PSI inaccuracies. The court declined to append to the PSI a list of claimed errors, a document cataloging thirty-five items over four and a half single-spaced pages. It found that the "errors" more aptly were disagreements, that Prouty had been given ample opportunity at sentencing to offer corrections and that over two years later was too late for modification of the PSI. The court did agree, however, to append to the relevant transcripts Prouty's list of proffered corrections. The court then advised Prouty of his appellate rights. Prouty exercises them here.

1. No State Briefing on Postconviction Motions

¶13 Prouty first contends the trial court erroneously exercised its discretion in denying his various postconviction motions because the State filed no response briefs in the trial court, thereby conceding his positions. He looks forsupport to Charolais Breeding Ranches, Ltd. v. FPC Securities Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) ("Respondents on appeal cannot complain if propositions of appellants are taken as confessed which they do not undertake to refute"); WIS. STAT. RULE 809.19(3); an Eastern District of Wisconsin local rule of civil practice; and a string of unpublished cases.

¶14 None pertain to or support his position. By its own language, Charolais Breeding Ranches applies "on appeal," as does WIS. STAT. RULE 809.19(3), a rule of appellate procedure. The local rule of civil practice governs dismissal for a defendant's failure to answer a complaint in a federal trial court. And the unpublished opinions may not be cited as precedent or authority for the purpose for which Prouty seeks to use them. See WIS. STAT. RULE 809.23(3)(a). Released before July 1, 2009, they also have no persuasive value. See RULE 809.23(3)(b). The parenthetical summaries also suggest that they are not on point. Regardless, we have no obligation to distinguish or discuss them. See id.

2. Suppression

¶15 Prouty next raises several suppression arguments. A voluntary plea of guilty generally waives all nonjurisdictional defects and defenses, including claims of constitutional violations occurring prior to the plea. State v. Riekkoff, 112 Wis. 2d 119, 123, 332 N.W.2d 744 (1983). WISCONSIN STAT. § 971.31(10) provides an exception for suppression motions. The sole suppression argument Prouty preserved for appeal is whether there existed probable cause for the arrest.

¶16 In determining whether probable cause exists, a court must look to the totality of the circumstances to determine whether the "arresting officer's knowledge at the time of the arrest would lead a reasonable police officer tobelieve... that the defendant was operating a motor vehicle while under the influence of an intoxicant." State v. Nordness, 128 Wis. 2d 15, 35, 381 N.W.2d 300 (1986). Whether an arrest was supported by probable cause is a question of constitutional fact. State v. Secrist, 224 Wis. 2d 201, 208, 589 N.W.2d 387 (1999). We review the trial court's factual findings under the clearly erroneous standard, but review the application of those facts to constitutional principles independently. State v. Post, 2007 WI 60, 18, 301 Wis. 2d 1, 733 N.W.2d 634. Because the facts here essentially are undisputed, we address only whether the facts supported probable cause, a question of law we review de novo. See id. If more than one inference can reasonably be drawn from the historical facts, we accept the inference drawn by the fact-finder. See State v. Drogsvold, 104 Wis. 2d 247, 256, 311 N.W.2d 243 (Ct. App. 1981).

¶17 The court found that Prouty's vehicle crossed the center line and struck the Berg vehicle head-on; that Prouty's eyes were bloodshot and his speech was slurred;...

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