State v. Berggren

• Decision Date: 27 May 2009
• Docket Number: No. 2008AP786-CR.,2008AP786-CR.
• Citation: 2009 WI App 82,769 N.W.2d 110
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Todd W. BERGGREN, Defendant-Appellant.<SMALL><SUP>&#x2020;</SUP></SMALL>
• Court: Wisconsin Court of Appeals

769 N.W.2d 110

2009 WI App 82

STATE of Wisconsin, Plaintiff-Respondent, v. Todd W. BERGGREN, Defendant-Appellant.^†

No. 2008AP786-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs February 5, 2009.

Opinion Filed May 27, 2009.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert G. LeBell of LeBell, Dobroski & Morgan LLP, of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sarah K. Larson, assistant attorney general.

Before CURLEY, P.J., FINE and KESSLER, JJ.

¶ 1 CURLEY, P.J

Todd W. Berggren appeals from a judgment of conviction, entered upon his guilty pleas, for two counts of first-degree sexual assault of a child, two counts of second-degree sexual assault of an unconscious victim, two counts of sexual exploitation of a child, and one count of possession of child pornography, contrary to WIS. STAT. §§ 948.02(1), 940.225(2)(d), 948.05(1)(b), and 948.12 (2005-06).¹ Berggren also appeals the orders denying his motions for postconviction relief. He argues that he should be able to withdraw his pleas, contending that his trial counsel was ineffective because he failed to file suppression motions relating to: (1) the seizure of a memory stick containing incriminating photographs; and (2) Berggren's custodial statements. He further asserts that the trial court erroneously exercised its discretion when it sentenced him and that the sentence imposed is excessive and constitutes cruel and unusual punishment. We conclude that Berggren's trial counsel was not ineffective and that the trial court properly exercised its discretion and imposed a sentence that was not unduly harsh. Accordingly, we affirm the judgment and orders.

I. BACKGROUND.

¶ 2 On November 28, 2005, Berggren was charged with two counts of first-degree sexual assault of a child, two counts of second-degree sexual assault of an unconscious victim, two counts of sexual exploitation of a child, and thirteen counts of possession of child pornography. The charges brought against Berggren stem from his then-twelve-year-old daughter's, Brittany B.'s, November 23, 2005 discovery of photographs on a memory stick for Berggren's digital camera.² Brittany inserted the memory stick into Berggren's digital camera to look for photographs of a recent soccer team outing. Instead, she discovered photographs she described as "nasty." Those "nasty" photographs depicted a young female performing an oral sex act on an unidentified male. Brittany later identified the male as Berggren and the young female as her step-sister, Cynthia R., who was also twelve years old at the time.

¶ 3 The same day that Brittany discovered the photographs, Lisa R., Brittany's mother, was contacted by Dawn R., Cynthia's mother. Dawn informed Lisa that Cynthia had had a conversation with Brittany the previous evening, November 22, 2005, in which Brittany told Cynthia that she was afraid that Berggren had touched Brittany inappropriately.³ Upon learning this, Lisa called Brittany, who was at Berggren's residence, and attempted to speak with her regarding the information relayed by Dawn. Brittany was not talkative, which Lisa believed was due to Berggren's presence within listening distance. After that, to get Brittany out of Berggren's house, Lisa called Berggren and told him, falsely, that her aunt was ill and that Brittany needed to join her family at the hospital.

¶ 4 Lisa then asked her brother, Michael Bolender, and her father to pick Brittany up from Berggren's residence. At the time, Bolender was a lieutenant with the Oak Creek Police Department. On the evening of November 23, 2005, he was off-duty and on vacation due to the Thanksgiving holiday. Bolender and Lisa's father picked Brittany up from Berggren's residence and returned to Lisa's home. Before leaving Berggren's residence, Brittany, of her own volition, took the memory stick that contained the "nasty" photographs.

¶ 5 After arriving home, Brittany shared with Lisa, outside the presence of Bolender, that Brittany had observed "pictures of Daddy naked with Cindy." Lisa then gave the memory stick to Bolender and instructed Brittany to explain what it was. Brittany told him that it contained "gross" or "nasty" pictures and may have also said that the pictures were "of her Dad." After he was unsuccessful in his attempt to access the memory stick on Lisa's computer, Bolender took the memory stick to his parents' residence to use with their computer. At his parents' residence, Bolender viewed two photographs, both of which contained similar pictures of a male torso from the chest down, and Cynthia lying next to the male torso having penis-to-mouth oral sex. Cynthia appeared to be asleep or unconscious in the photographs. Bolender contacted the Oak Creek Police Department, and Berggren was subsequently arrested.

¶ 6 Berggren pled guilty to two counts of first-degree sexual assault of a child, two counts of second-degree sexual assault of an unconscious victim, two counts of sexual exploitation of a child, and one count of child pornography. Pursuant to plea negotiations, the twelve remaining counts of possession of child pornography were dismissed but read-in at sentencing.⁴ He was sentenced as follows: Count 1 (first-degree sexual assault of a child), eighteen years of initial confinement and five years of extended supervision; Count 2 (first-degree sexual assault of a child), eighteen years of initial confinement and five years of extended supervision, concurrent to Count 1; Count 3 (second-degree sexual assault of an unconscious victim), twelve years of initial confinement and six years of extended supervision, consecutive to Counts 1 and 2; Count 4 (second-degree sexual assault of an unconscious victim), twelve years of initial confinement and six years of extended supervision, concurrent to Count 3; Count 5 (sexual exploitation of a child), five years of initial confinement and five years of extended supervision, consecutive to Counts 3 and 4; Count 6 (sexual exploitation of a child), five years of initial confinement and five years of extended supervision, concurrent to Count 5; and Count 7 (possession of child pornography), one year of initial confinement and one year of extended supervision, consecutive to Counts 5 and 6. In total, Berggren was sentenced to thirty-six years of initial confinement and seventeen years of extended supervision.

¶ 7 Berggren filed a postconviction motion seeking sentence modification on the basis that the sentence imposed was the product of an erroneous exercise of discretion. The trial court denied Berggren's motion and he appealed, but later voluntarily dismissed his appeal to pursue a second postconviction motion.

¶ 8 In his second postconviction motion, Berggren sought to withdraw his pleas based on ineffective assistance of counsel. Berggren maintained that his trial counsel was ineffective because he failed to file suppression motions related to the memory stick and statements Berggren made while in custody. The trial court held a Machner hearing, after which it denied Berggren's motion to vacate his pleas, adopting the State's findings of facts and conclusions of law in toto.⁵ Berggren now appeals. Additional facts will be provided in the analysis section as necessary to the discussion of Berggren's claims.

II. ANALYSIS.

A. Berggren's trial counsel did not render ineffective assistance.

¶ 9 Berggren argues that he should be able to withdraw his pleas because his trial counsel was ineffective for failing to challenge the seizure of a memory stick containing incriminating photographs and for not filing a motion to suppress his custodial statements. In an affidavit, Berggren asserts that if he had known "that there was a viable motion to suppress the memory stick and/or the custodial statements, he would not have ple[ ]d guilty."

¶ 10 "Following sentencing, a defendant who seeks to withdraw a guilty or nolo contendere plea carries the heavy burden of establishing, by clear and convincing evidence, that the trial court should permit the defendant to withdraw the plea to correct a `manifest injustice.'" State v. Washington, 176 Wis.2d 205, 213, 500 N.W.2d 331 (Ct.App.1993) (citation omitted). Ineffective assistance of counsel can constitute a "manifest injustice." Id. at 213-14, 500 N.W.2d 331.

¶ 11 A defendant claiming ineffective assistance of counsel must establish that the trial counsel's performance was deficient, and that the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court need not address both components of the analysis if the defendant makes an inadequate showing on one. Id. at 697, 104 S.Ct. 2052. To prove deficient performance, a defendant must establish that trial counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052 Thus, the defendant must overcome a strong presumption that trial counsel acted reasonably within professional norms. Id. at 689, 104 S.Ct. 2052.

¶ 12 We review a claim for ineffective assistance of counsel under a mixed standard of review. State v. Johnson, 153 Wis.2d 121, 127, 449 N.W.2d 845 (1990). The trial court's findings of fact will not be overturned unless clearly erroneous. Id. However, determinations as to whether counsel's performance was deficient and prejudicial are questions of law which we review independently. Id. at 128, 449 N.W.2d 845. We consider Berggren's claims of ineffective assistance of counsel in turn.

1. Alleged ineffective assistance in connection with trial counsel's failure to file a suppression motion related to the memory stick.

¶ 13 Berggren's first claim on appeal is that his attorney should have sought to suppress the memory stick and the photographs it contained. Berggren contends that "the viewing [of the memory...