State v. Foster

Decision Date26 December 2014
Docket NumberNo. 2011AP1673–CRNM.,2011AP1673–CRNM.
Citation856 N.W.2d 847,360 Wis.2d 12
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Cassius A. FOSTER, Defendant–Appellant–Petitioner.
CourtWisconsin Supreme Court

For the defendant-appellant-petitioner, there were briefs by John R. Breffeilh, assistant state public defender, and oral argument by John R. Breffeilh.

For the plaintiff-respondent, the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

Opinion

N. PATRICK CROOKS, J.

¶ 1 This is a review of an unpublished opinion and order of the court of appeals1 accepting post-conviction counsel's no-merit report and affirming the circuit court's conviction of the defendant, Cassius A. Foster (Foster).

¶ 2 Following a jury trial, Foster was convicted of operating a vehicle while under the influence of an intoxicant, sixth offense, in violation of Wis. Stat. § 346.63(1)(a).2 The circuit court, Monroe County, the Honorable Todd L. Ziegler, presiding, entered a judgment of conviction on September 23, 2010. The circuit court withheld sentence and placed Foster on probation for three years, with one year of jail time as a condition of probation.

¶ 3 Thereafter, Foster filed a post-conviction motion seeking resentencing on the basis that his trial counsel was ineffective for failing to collaterally attack three prior drunk-driving convictions which enhanced his sentence. The circuit court ultimately denied the motion. The circuit court reasoned that Foster was not prejudiced by his trial counsel's failure to collaterally attack the three prior convictions because that challenge was unlikely to succeed.

¶ 4 Foster's post-conviction counsel then filed a no-merit report with the court of appeals. The court of appeals accepted the no-merit report and affirmed Foster's conviction.

¶ 5 Foster, proceeding pro se, filed a petition for review with this court. His petition focused solely on the issue of whether he possessed a meritorious claim for ineffective assistance of counsel.

¶ 6 While Foster's petition was pending before the court, the United States Supreme Court decided Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). McNeely abrogated our decision in State v. Bohling, 173 Wis.2d 529, 547–48, 494 N.W.2d 399 (1993), to the extent that we held the natural dissipation of alcohol in a person's bloodstream constitutes a per se exigency so as to justify a warrantless nonconsensual blood draw under certain circumstances. Because it appeared to us that the police relied on Bohling to effectuate the search and seizure of Foster's blood, we granted review.

¶ 7 Accordingly, this case presents two issues for our determination: (1) whether the warrantless nonconsensual blood draw performed on Foster is constitutional in light of the United States Supreme Court's decision in McNeely, and if not, whether suppression of the evidence derived from Foster's blood is the appropriate remedy for that constitutional violation, or alternatively, whether the good faith exception to the exclusionary rule applies; and (2) whether the court of appeals properly accepted post-conviction counsel's no-merit report.

¶ 8 We hold that McNeely applies retroactively to the facts of this case and that the warrantless nonconsensual blood draw performed on Foster violated his right to be free from unreasonable searches and seizures. However, we decline to apply the exclusionary rule to suppress the evidence derived from Foster's blood. Because the police acted in objectively reasonable reliance upon the clear and settled precedent of Bohling in effectuating the search and seizure of Foster's blood, the good faith exception to the exclusionary rule precludes suppression of the evidence.

¶ 9 We further hold that the court of appeals properly accepted post-conviction counsel's no-merit report. The court of appeals reasonably exercised its discretion in finding no arguable merit to Foster's ineffective assistance of counsel claim on the basis that Foster failed to demonstrate the requisite prejudice to support that claim.

¶ 10 Therefore, we affirm the decision of the court of appeals and uphold Foster's conviction.

I

¶ 11 On March 6, 2009, at approximately 11:55 p.m., Officer Jarrod Furlano of the Tomah Police Department stopped Foster's vehicle for traveling fifty miles per hour in a thirty mile per hour speed zone. When approached by Officer Furlano, Foster struggled to lower his window and to produce his driver's license. Observing that Foster had glassy, bloodshot eyes and slurred speech, Officer Furlano asked Foster whether he had been consuming alcohol.

Foster responded that he had consumed a couple beers.

¶ 12 As a result, Officer Furlano had Foster exit his vehicle for standardized field sobriety testing. He asked Foster to perform the “horizontal gaze nystagmus test,” the “walk and turn test,” and the “one leg stand test.” According to Officer Furlano, Foster failed all three tests.

¶ 13 Officer Furlano then placed Foster under arrest and transported him to Tomah Memorial Hospital for a blood draw. Foster refused to consent to the draw. Acting without a warrant, Officer Furlano instructed a registered nurse to draw Foster's blood. The blood draw occurred at approximately 12:50 a.m. The results showed that Foster's blood-alcohol level was .112 at the time of the draw.

¶ 14 On March 20, 2009, Foster was charged with operating a vehicle while under the influence of an intoxicant (OWI), seventh offense.3 The State later amended the criminal complaint on May 28, 2009, to charge Foster with his sixth, not seventh, OWI.

¶ 15 On May 27, 2010, a jury convicted Foster of OWI. The State then introduced certified driving records from Wisconsin, Oklahoma, and Texas to establish that Foster had five prior drunk-driving convictions for purposes of sentencing under Wis. Stat. § 346.65(2)(am)5.4

¶ 16 On September 23, 2010, the circuit court entered a judgment of conviction reflecting Foster's sixth OWI offense. The circuit court withheld sentence and placed Foster on probation for three years, with one year of jail time as a condition of probation.

¶ 17 Foster then filed a post-conviction motion seeking resentencing on the basis that his trial counsel was ineffective for failing to collaterally attack his three prior drunk-driving convictions from Oklahoma. Underlying Foster's ineffective assistance claim was his contention that those convictions were obtained in violation of his constitutional right to counsel; thus, the prior convictions should not have enhanced his sentence in this case.

¶ 18 In support of his motion, Foster submitted an affidavit alleging the following facts for each prior conviction: (1) he entered his guilty plea without the advice of counsel; (2) he did not affirmatively waive his right to counsel; and (3) he was not advised of his right to counsel. Foster further averred that he would have asked for a lawyer in each case because: (1) he did not know how serious the charge was; (2) he did not know how a conviction would affect him in the future; (3) he did not know that an attorney could assist him in contesting the charges against him; and (4) he did not know the difficulties and disadvantages of representing himself.

¶ 19 On June 15, 2011, the circuit court held a hearing pursuant to State v. Machner, 92 Wis.2d 797, 285 N.W.2d 905 (Ct.App.1979),5 wherein Foster's trial counsel testified on the matter of deficient performance. Trial counsel testified that she had two reasons for not collaterally attacking Foster's prior convictions. First, she believed that a collateral attack was a sentencing issue, not a trial issue, and that Foster could raise it at sentencing. Second, she withheld a collateral attack as a matter of trial strategy: Foster's objective was to negotiate a plea deal, and the State had a policy of withdrawing a pretrial offer in the face of an evidentiary motion.

¶ 20 At the Machner hearing, the circuit court also took testimony and received evidence on the matter of prejudice. In order to evaluate whether Foster was prejudiced by his trial counsel's failure to collaterally attack his prior convictions, the circuit court proceeded under the burden-shifting collateral attack procedure that we set forth in State v. Ernst, 2005 WI 107, ¶ 37, 283 Wis.2d 300, 699 N.W.2d 92. Pursuant to Ernst, the circuit court determined that Foster's affidavit made a prima facie showing that his waiver of counsel in the Oklahoma cases was not a knowing, intelligent, and voluntary one. The circuit court then shifted the burden to the State to prove otherwise by clear and convincing evidence.

¶ 21 The State sought to meet its burden by questioning Foster as to the averments in his affidavit.6 The State also introduced two certified copies of the “Notice of Rights” form that Foster signed when he entered his guilty plea to each Oklahoma offense.7 The forms provided, in relevant part:

I, (being of legal age) the defendant in this matter, for which if convicted I may be sentenced to jail, was advised in open court, of my right to be represented by counsel of my choice, by the Municipal Public Defender if I so request and qualify as an indigent, or waive my right to counsel.
...
I FURTHER UNDERSTAND ... THAT a record of any conviction in traffic cases will be sent to the Department of Public Safety of Oklahoma to become part of my permanent driving record.

¶ 22 Upon questioning, Foster admitted that he checked the box marked “I waive my right to counsel on each form. The transcript from the Machner hearing indicates that the following exchange ensued:

THE STATE: When you just read to the judge that document informs you that you had a right to counsel and that you could have an attorney appointed to you if you were indigent, that is in direct contravention with what you testified earlier, correct?
THE DEFENDANT: Right.
THE STATE: And why did you testify earlier that you have never
...

To continue reading

Request your trial
23 cases
  • State v. Blatterman
    • United States
    • Wisconsin Supreme Court
    • May 5, 2015
    ...because the blood draw occurred before McNeely. See State v. Kennedy, 2014 WI 132, ¶¶ 35–37, 359 Wis.2d 454, 856 N.W.2d 834 ; State v. Foster, 2014 WI 131, ¶¶ 47–58, 360 Wis.2d 12, 856 N.W.2d 847.18 “Alcohol concentration” means “[t]he number of grams of alcohol per 100 milliliters of a per......
  • State v. Delap
    • United States
    • Wisconsin Supreme Court
    • June 6, 2018
    ...searches[, or entries,] are per se unreasonable unless they fall within a well-recognized exception to the warrant requirement." State v. Foster, 2014 WI 131, ¶ 32, 360 Wis. 2d 12, 856 N.W.2d 847. One well-recognized exception to the warrant requirement is the exigent circumstances doctrine......
  • State v. Tullberg
    • United States
    • Wisconsin Supreme Court
    • December 26, 2014
    ...185 L.Ed.2d 696 (2013). The other two cases in this trilogy are State v. Kennedy, 2014 WI 132, 359 Wis.2d 454, 856 N.W.2d 834, and State v. Foster, 2014 WI 131, – ––Wis.2d ––––, 856 N.W.2d 847. For a discussion of these three opinions, including the instant case, and the issues arising ther......
  • State v. Coffee
    • United States
    • Wisconsin Supreme Court
    • June 5, 2020
    ...of the Fourth Amendment that sets the minimum protections afforded by the federal constitution." (citation omitted)); and State v. Foster, 2014 WI 131, ¶57, 360 Wis. 2d 12, 856 N.W.2d 847 ("Our decisions interpreting the United States Constitution are binding law in Wisconsin until this cou......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT