State v. Conley

• Decision Date: 13 April 2021
• Docket Number: Appeal No. 2019AP1526-CR
• Citation: 2021 WI App 36,960 N.W.2d 628 (Table)
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Kimeo D. CONLEY, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

960 N.W.2d 628 (Table)

2021 WI App 36

STATE of Wisconsin, Plaintiff-Respondent, v. Kimeo D. CONLEY, ^† Defendant-Appellant.

Appeal No. 2019AP1526-CR

Court of Appeals of Wisconsin.

April 13, 2021

PER CURIAM.

¶1 Kimeo D. Conley, pro se , appeals his judgment of conviction for one count of trafficking of a child. He argues that because the State and trial court committed errors during the pretrial, trial, and postconviction proceedings, we should vacate his conviction and grant him a new trial. For the reasons we explain below, we reject Conley's arguments and accordingly, we affirm the judgment.

BACKGROUND

¶2 The State charged Conley with one count of trafficking of a child for knowingly recruiting, harboring, and providing a child for the purpose of a commercial sex act contrary to WIS. STAT. § 948.051(1) (2019-20). ¹ The criminal complaint alleged that a Milwaukee Police Department Sensitive Crimes Unit officer met with SAB, who explained that between October 30, 2018, and December 4, 2018, Conley sold her for money to multiple men for sex acts. SAB was seventeen years old throughout this time and she told the police that "all of the money she made went to" Conley. SAB told police that Conley had another person "take photos of SAB in red lingerie and posted it on escort websites." SAB explained that in the beginning, she got $80 for some "dates" but she started charging $200-$300 when Conley told her she could charge more. ² SAB stated that Conley "required" her to notify him "when she had a date." SAB said she "would regularly do [three] dates per day."

¶3 At Conley's initial appearance on January 4, 2019, on the child trafficking case, the trial court was informed that Conley had a pending case for "human trafficking, strangulation and suffocation, false imprisonment and misdemeanor battery" related to another victim, MJH. At a hearing on January 25, 2019, for both cases, the prosecutor stated that it had filed a motion to join the two cases. ³ The trial court noted that Conley had a speedy jury trial set for the MJH's case. The trial court set the jury trial in SAB's case to the "same trial date in the event that the joinder motion is granted."

¶4 At the joinder hearing on February 11, 2019, trial counsel acknowledged the State had a strong joinder motion, but reminded the court that "[w]hen that trial date was set, the defendant had filed a speedy trial demand." The State had recently filed new discovery in the new case. Conley wanted trial counsel "to do some additional investigation" in the new case, and trial counsel was "not in a position to be ready to go to trial" at the assigned trial date. Trial counsel asked the court to adjourn the trial date; he did not think Conley would "waive the speedy trial demand," but there was some time left to work within the deadline. The trial court noted that the defense did not object to the motion for joinder and granted the motion. The trial court then questioned Conley about whether he would like additional discovery and to waive his speedy trial demand or if he wanted to proceed with the original trial date in approximately two weeks. Conley chose to keep his speedy trial demand.

¶5 A three-day jury trial was conducted in February 2019. After the closing statements and jury instructions, the trial court selected two jurors by lot and removed them before deliberations, creating the final jury panel of twelve. The jury then began deliberations. Prior to sending the jury panel home at the end of the day, the trial court stated on the record that "[o]ne of the alternate jurors has stayed in the event you would have had a verdict today. She can't talk to any of you because we've talked to her a little bit about the case and some of the things behind the scenes." The jury deliberated the next morning and returned a verdict of guilty on the charge of trafficking of a child and not guilty on the charges of human trafficking, strangulation and suffocation, false imprisonment, and battery.

¶6 At the sentencing hearing, the trial court heard from SAB, who discussed the impact Conley's crimes had on her, stating that she thought Conley deserved "as much [time] as you could possibly give him" and that she had "a lot of anxiety" when meeting new people as a result. The trial court also heard from Conley, ⁴ as well as the State and trial counsel. When the trial court discussed the sentence it was imposing, it stated:

I will tell you that I watched the jury's reaction as they were watching the evidence come in. And I talked with that jury panel. They were horrified with this conduct.

I did not find you believable when you took the stand. And today I don't find that you've taken any responsibility for the actions that you were engaged in or that it's even sunk into your head just how serious this was.

....

You tear the community apart at the roots when you engage in conduct like this.

I can't underscore how serious it is. I can't underscore enough how unfortunate it is that you won't take any responsibility for this, even when a jury found you guilty and that you appear to have no sympathy or compassion for the victim in this case, none. You care about one person. You proved that based on the activities that you were engaged in; and you proved it again today with the statement that you made.

You care about one person. You care about yourself.

The trial court imposed fifteen years of initial confinement and ten years of extended supervision.

¶7 Prior to the restitution hearing, Conley filed notice of intent to pursue postconviction relief with appointed appellate counsel.

¶8 The final hearing before the trial court was a restitution hearing in May 2019. SAB, appearing with counsel, requested the trial court grant restitution for the income Conley earned for exploiting her under WIS. STAT. § 973.20(4o)(b). SAB testified that she started working for Conley at the "end of October" in 2018 and stopped when he was arrested in December 2018. She worked every day during that time, usually going on three dates each day, and earning $80 for the first few dates and then $200-$300 for each date. SAB did not recall any days she went on fewer than three dates and she testified that she gave all of her earnings to Conley. Trial counsel cross-examined SAB to understand how much Conley spent on food and rent and clothing or personal items during this time period; however, the trial court informed him that it was not going to offset anything spent on SAB. SAB requested restitution of $20,400, based on thirty-four days at three dates a day, which equaled 102 dates, and then multiplied by $200 per date for an estimate of her gross earnings. The trial court interpreted the statute to include "gross income gained by the defendant" and that the trial court did not see anything in the statute "for offsetting a trafficker with the little tidbits or crumbs he may have given her along the way to keep her housed so he could keep her in his stable." The trial court found SAB's testimony credible and it concluded this was a reasonable calculation and ordered $20,400 in restitution to SAB.

¶9 In June through August 2019, Conley pursued postconviction relief, both with appointed counsel and pro se. Conley filed a pro se motion for reconsideration or a new trial. He argued he had newly discovered evidence, but he did not present that evidence to the court. The circuit court informed Conley that it would not address Conley's pro se motion because his appointed postconviction attorney's motion to withdraw as counsel had not been heard yet. The State Public Defender filed a report pursuant to WIS. STAT. § 809.30(4)(b), which advised the court and Conley that "if the motion to withdraw is granted, the SPD will not again appoint counsel for Mr. Conley in the future in this case either in postconviction proceedings or on appeal." The trial court held the motion to withdraw in abeyance, pending a response from Conley. Conley notified the trial court that he understood the risks, was competent to proceed, and he had conflicting goals with the appointed counsel about how to proceed on the case. The trial court granted appointed counsel's motion to withdraw. This pro se appeal followed. Additional facts are included in the discussion as necessary.

DISCUSSION

¶10 Conley argues several errors in the court proceedings and trial would make him eligible for postconviction relief; he requests having his conviction vacated or being granted a new trial. We address his motions in three sets: pretrial issues, postconviction relief issues, and sufficiency of the evidence. Upon review, we reject Conley's arguments on both procedural grounds and on the merits, and we affirm his conviction.

I. Pretrial issues

¶11 Conley argues that the State's pretrial actions give us reason to dismiss this matter, which is relief that is not available to him. We interpret his appeal overall to request a new trial. We review his arguments briefly: (1) the trial prosecutor did not appear at the January 25, 2019 pretrial hearing, which Conley argues is a violation of the trial court's calendar practice under WIS. STAT. § 802.10(7) ; (2) the State failed to prosecute SAB for violations of the prostitution statute, WIS. STAT. § 944.30, which he argues violated WIS. STAT. § 805.03, the statute that addresses the failure to prosecute a civil action; (3) the State failed to divulge discovery to the defense in a timely manner; (4) the trial court improperly joined his two cases; and (5) he was arrested without probable cause and he was not read his Miranda⁵ rights.

¶12 First, Conley's assertion that having a substitute prosecutor at the January 25, 2019 pretrial hearing violated the court's calendar practice rules under WIS. STAT. § 802.10(7) fails because our supreme court has addressed the situation where "various proceedings in the case were conducted by different assistant district attorneys" and found no violation of due process or prejudicial...