State v. Conger

Decision Date14 December 2022
Docket Number2022AP844-CR
PartiesState of Wisconsin, Plaintiff-Respondent, v. Nicholas A. Conger, Defendant-Appellant.
CourtWisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent,
Nicholas A. Conger, Defendant-Appellant.

No. 2022AP844-CR

Court of Appeals of Wisconsin, District II

December 14, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from a judgment and an order of the circuit court for Green Lake County No. 2019CT37: MARK T. SLATE, Judge. Affirmed.

LAZAR, J.[1]

¶1 Courts walk a precarious tightrope when they balance an individual's protected privacy interests and the promotion of legitimate


governmental interests in order to determine the reasonableness of law enforcement conduct under the Fourth Amendment.[2] See Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999). Here, Nicholas A. Conger appeals from a judgment of conviction for operating a vehicle with a restricted controlled substance (RCS) in his blood (third offense) contrary to Wis.Stat. § 346.63(1)(am), and the order denying his motion for postconviction relief, which alleged ineffective assistance of counsel. Conger contends that he was prejudiced by his trial counsel's failure to bring a second suppression motion asserting that law enforcement lacked reasonable suspicion to extend a traffic stop for defective equipment to conduct standardized field sobriety tests when there was only an open intoxicant in his vehicle and he evidenced no signs of impairment. This court concludes that the facts warranted reasonable suspicion of impaired driving or driving with a restricted controlled substance in the blood such that extension of the stop was lawful, and, therefore, Conger's trial counsel was not ineffective in her representation. The judgment and order are affirmed.


¶2 In December 2018, Officer Bradley Wendt conducted a traffic stop on a car Conger was driving. Wendt's sole reason for the stop was that he noticed Conger's high-mounted stop lamp was not working. When he approached Conger, however, he smelled alcohol. Wendt asked Conger what he was smelling coming from the vehicle. Surprising the officer, Conger responded, "Probably the


pot." Conger handed over both an open can of Mike's Hard Lemonade and a small amount of marijuana. He responded affirmatively to Wendt's question of whether he had been drinking.

¶3 At that point, Wendt asked Conger if he would be willing to perform Standardized Field Sobriety Tests (SFSTs), and Conger agreed. Due to the cold weather, Wendt transported Conger to the police station (a few blocks away) to perform the SFSTs. Wendt had an ARIDE certification that indicated he had training about drugs and substances other than alcohol that can impair a driver's ability to safely operate a motor vehicle. Based on Conger's performance on the SFSTs, additional conversation (including an alleged admission[3] that he had recently smoked marijuana), and physical observations (including perceived heat bumps on Conger's tongue), Wendt arrested Conger for operating a motor vehicle with a restricted controlled substance in his blood. Law enforcement subsequently tested his blood and determined that it contained THC.

¶4 Conger pled not guilty to the charge of driving with a restricted controlled substance in his blood (third offense). His counsel filed several motions, including motions to suppress evidence for lack of probable cause to arrest and to suppress statements based upon violation of Miranda,[4] which the trial court denied. A jury rejected Conger's defense that the blood test results were not reliable and convicted him in May 2021.


¶5 Conger filed a postconviction motion asserting ineffective assistance of counsel based on his trial counsel's failure to file a motion to suppress evidence based on the allegedly unlawful extension of the traffic stop described above. Conger's argument was that, lacking any indicia of intoxication or evidence of recent marijuana use, Wendt did not have the requisite reasonable suspicion of impaired driving to extend the stop into an OWI/RCS investigation. The trial court held a hearing on this motion during which Conger's trial counsel testified, in hindsight, that her decision not to file a motion challenging the extension of the traffic stop was an oversight. The trial court denied Conger's motion (and his subsequent motion for reconsideration, at which Wendt testified), finding that the odor of intoxicants, the open can of alcohol in the vehicle, Conger's statements regarding the smell of marijuana and the admission of drinking, and Conger's bloodshot eyes[5] provided reasonable suspicion such that a motion to suppress would not have succeeded. Therefore, the court determined, Conger's trial counsel was not ineffective because the motion would not have been successful and Conger was not prejudiced "in any way." Conger appeals.


¶6 Conger contends that his trial counsel's representation was deficient because she failed to challenge the conversion of an equipment violation traffic stop into an investigatory stop when there was no evidence of impairment or


recent consumption of a restricted controlled substance. Had she filed that motion to suppress, Conger claims, the extension of his traffic stop would have been declared unconstitutional and all evidence derived therefrom would have been suppressed. He argues this despite the other motions-one of which raised almost the same issue-that were filed on his behalf and that the trial court denied. Conger also contends that the trial court's factual finding that he had bloodshot eyes is clearly erroneous.

¶7 The State, to the contrary, argues that under the totality of the circumstances, there were more than sufficient articulable facts to support the officer's reasonable suspicion to extend the legal traffic stop and to conduct the SFSTs. It also asserts that, because of that reasonable suspicion, there was no ineffective assistance of counsel. This court agrees.

I. Standard of Review

¶8 Both issues in this appeal center upon constitutional rights, and, as such, they are subject to a two-step process of review. State v. Dalton, 2018 WI 85, ¶33, 383 Wis.2d 147, 914 N.W.2d 120; State v. Tullberg, 2014 WI 134, ¶27, 359 Wis.2d 421, 857 N.W.2d 120. First, this court will uphold a trial court's findings of fact unless they are clearly erroneous. State v. Hughes, 2000 WI 24, ¶15, 233 Wis.2d 280, 607 N.W.2d 621 (citing State v. Secrist, 224 Wis.2d 201, 207, 589 N.W.2d 387 (1999)). Second, this court applies the law to those facts de novo. Dalton, 383 Wis.2d 147, ¶33.


II. Ineffective Assistance of Counsel

¶9 Derived from the Counsel Clause of the Sixth Amendment,[6] it is well settled that criminal defendants are constitutionally guaranteed the right to the assistance of competent counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). This fundamental right is applicable in Wisconsin as well, through the Sixth Amendment (made applicable to the states by the Fourteenth Amendment) and through article 1, section 7 of the Wisconsin Constitution. State v. Jenkins, 2014 WI 59, ¶34 & n.11, 355 Wis.2d 180, 848 N.W.2d 786. This is not just a right to counsel, but a right to the "effective" or "adequate" assistance of counsel. State v. Schaefer, 2008 WI 25, ¶83 n.19, 308 Wis.2d 279, 746 N.W.2d 457; State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711 (1985).

¶10 "The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648, 656 (1984). The question of ineffectiveness is case specific. It is an inquiry into a particular defendant's rights in a specific case.

¶11 "The benchmark for judging any claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial [or, in this case, the pretrial motion practice]


cannot be relied on as having produced a just result." Jenkins, 355 Wis.2d 180, ¶34. The two-prong test to be used by the court was set forth in Strickland and adopted in...

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