State v. Burkhardt, 2009AP2174–CR.
| Decision Date | 06 December 2012 |
| Docket Number | No. 2009AP2174–CR.,2009AP2174–CR. |
| Citation | 826 N.W.2d 122,2013 WI App 13,345 Wis.2d 845 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent, v. Robert Edwin BURKHARDT, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from a judgment and orders of the circuit court for Milwaukee County: William W. Brash, Judge. Affirmed.
Before LUNDSTEN, P.J., HIGGINBOTHAM and BLANCHARD, JJ.¶ 1HIGGINBOTHAM, J.
Robert Edwin Burkhardt, pro se, appeals a judgment of conviction entered against him on six counts of possession of child pornography, contrary to Wis. Stat. § 948.12(1m) (2009–10),1 and one count of felony bail jumping, contrary to Wis. Stat. § 946.49(1)(b). Burkhardt also appeals orders denying his motion for postconviction relief without an evidentiary hearing. For the reasons we explain below, we affirm.
¶ 2 The following facts are taken from Burkhardt's motion for postconviction relief and other material submitted in support of the motion. In April 2006, a detective and two police officers from the City of Milwaukee police department appeared at Burkhardt's residence and informed him that they were investigating a cyber tip that he was operating a child pornography website. The detective asked for Burkhardt's consent to search the computer belonging to his significant other, to which Burkhardt had full access, for evidence that he was operating a child pornography website. Burkhardt avers that the police officers told him that, if he refused to consent to the search, they would obtain a search warrant. Burkhardt signed a form consenting to the search of the computer. In the course of the search, numerous images of child pornography were discovered. Following the search, the police officers seized the computer and arrested Burkhardt. Relevant to the bail jumping charge, at the time of his arrest, Burkhardt was released on bail pending possession of child pornography charges in Ozaukee County.
¶ 3 After his arrest, Burkhardt was taken to jail, where he received Miranda2 warnings and confessed that he purchased a membership to a child pornography site containing images of girls approximately ten to fifteen years of age. Burkhardt estimated that he visited child pornography websites approximately seven to eight times per week. Burkhardt stated to police that he was in need of professional treatment for his problem with child pornography.
¶ 4 The State filed a criminal complaint, charging Burkhardt with six counts of possession of child pornography and one count of felony bail jumping. The complaint recites Burkhardt's admissions regarding his use of the computer to view images of child pornography and his problem with child pornography summarized above. The six counts of possession were based on six images found on the computer hard drive. The complaint states that the images represented only a small percentage of the total number of images of child pornography found on the computer.
¶ 5 Burkhardt pled guilty to all seven counts, and the court entered a judgment of conviction against him. Burkhardt subsequently filed a motion for postconviction discovery, seeking the results of a forensic examination of the computer. The circuit court denied the motion.
¶ 6 Burkhardt subsequently filed a postconviction motion requesting permission from the court to withdraw his guilty pleas. The court denied Burkhardt's motion in part but ordered additional briefing regarding Burkhardt's contention that he did not “knowingly” possess the images of child pornography for which he was charged. After receiving the requested briefing, the court adopted the State's brief as its decision and denied the remainder of the postconviction motion without an evidentiary hearing. Burkhardt appeals. Additional facts are provided below as needed.
¶ 7 Burkhardt contends that he is entitled to withdraw his guilty pleas on various grounds or, at a minimum, that he is entitled to an evidentiary hearing on those grounds. We organize our discussion as follows. First, we address whether Burkhardt has alleged sufficient facts in his postconviction motion to entitle him to an evidentiary hearing on whether his counsel provided ineffective assistance of counsel by failing to challenge the search of the computer. Second, we address whether there was an insufficient factual basis in the criminal complaint to establish that he “knowingly” possessed the images of child pornography. Third, we address whether Burkhardt is entitled to postconviction discovery of a computer forensic examination report that was not disclosed to him.
¶ 8 Before reaching Burkhardt's arguments, we review the relevant law. The general rule in Wisconsin is that a guilty plea “waives all nonjurisdictional defects, including constitutional claims.” State v. Kelty, 2006 WI 101, ¶ 18, 294 Wis.2d 62, 716 N.W.2d 886 (citation omitted). After sentencing, a defendant is entitled to withdraw a guilty plea only when the defendant demonstrates by clear and convincing evidence that a manifest injustice has occurred. State v. Wesley, 2009 WI App 118, ¶ 22, 321 Wis.2d 151, 772 N.W.2d 232. A manifest injustice occurs when a plea is not entered knowingly, intelligently, and voluntarily. State v. Brown, 2006 WI 100, ¶ 18, 293 Wis.2d 594, 716 N.W.2d 906. A plea is entered involuntarily, for example, when the facts admitted do not fit within the definition of the crime. State v. Van Camp, 213 Wis.2d 131, 140, 569 N.W.2d 577 (1997); State v. Lampe, 26 Wis.2d 646, 648–49, 133 N.W.2d 349 (1965).
¶ 9 Manifest injustice may also occur when a defendant receives ineffective assistance of counsel. State v. Berggren, 2009 WI App 82, ¶ 10, 320 Wis.2d 209, 769 N.W.2d 110. To succeed on a claim of ineffective assistance of counsel, a defendant must show that counsel's representation was deficient and that the deficiency was prejudicial. State v. Smith, 207 Wis.2d 258, 273, 558 N.W.2d 379 (1997). A court deciding an ineffective assistance claim is not required to “address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both deficient performance and prejudice present mixed questions of fact and law. State v. Jeannie M.P., 2005 WI App 183, ¶ 6, 286 Wis.2d 721, 703 N.W.2d 694. We uphold a circuit court's factual findings unless clearly erroneous. State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis.2d 571, 665 N.W.2d 305. Whether counsel's performance is deficient or prejudicial is a question of law that we review de novo. Jeannie M.P., 286 Wis.2d 721, ¶ 6, 703 N.W.2d 694.
¶ 10 To prove deficient performance, the defendant must show that counsel's specific acts or omissions were “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. There is a strong presumption that a defendant received adequate assistance. State v. Domke, 2011 WI 95, ¶ 36, 337 Wis.2d 268, 805 N.W.2d 364. To prove prejudice, the defendant must establish a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability exists when the error undermines confidence in the outcome. State v. Sanchez, 201 Wis.2d 219, 236, 548 N.W.2d 69 (1996).
¶ 11 We begin by addressing Burkhardt's contention that he is entitled to an evidentiary hearing under Nelson/Bentley on whether the police violated his Fourth Amendment right to be free from unreasonable searches and seizures in searching his computer. See Nelson v. State, 54 Wis.2d 489, 195 N.W.2d 629 (1972); State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996). As we have stated, the guilty plea waiver rule ordinarily operates as a waiver of constitutional challenges. See Kelty, 294 Wis.2d 62, ¶ 18, 716 N.W.2d 886. Here, defense counsel did not move to suppress the evidence found on the computer, and, therefore, the suppression exception to the guilty plea waiver rule, Wis. Stat. § 971.31(10), does not apply. See State v. Riekkoff, 112 Wis.2d 119, 124–25, 332 N.W.2d 744 (1983). Burkhardt, however, also complains that defense counsel provided ineffective assistance by failing to move for suppression.
¶ 12 Whether a defendant's postconviction motion alleges sufficient facts to entitle the defendant to an evidentiary hearing under Nelson/Bentley is a mixed question of law and fact. State v. Allen, 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433. We first determine whether a defendant's postconviction motion alleges sufficient material facts that, if true, would entitle the defendant to relief as a matter of law. Id. When the postconviction motion raises such facts, a defendant is entitled to an evidentiary hearing. Id. However, if the defendant's motion “fails to allege sufficient facts entitling the defendant to relief or presents only conclusory allegations, or the record, as a matter of law, conclusively demonstrates the defendant is not entitled to relief,” a court has discretion to grant or deny an evidentiary hearing. State v. Howell, 2007 WI 75, ¶ 79, 301 Wis.2d 350, 734 N.W.2d 48. We uphold a discretionary decision unless clearly erroneous. Id.
¶ 13 Accordingly, the question is whether Burkhardt's postconviction motion alleges sufficient facts which, if true, demonstrate that defense counsel was ineffective for failing to move for suppression. We conclude that it does not.
¶ 14 The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV. In general, a search conducted without a warrant is unreasonable. State v. Artic, 2010 WI 83, ¶ 29, 327 Wis.2d 392, 786 N.W.2d 430. However, a warrant is not needed when the defendant consents to the search. Id. To determine whether the defendant gave valid consent to a search, we consider: (1) whether the defendant gave consent in fact by words, gestures, or conduct; and (2) whethe...
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