State v. Franklin, No. 2007AP960-CR (Wis. App. 5/20/2008)

• Decision Date: 20 May 2008
• Docket Number: No. 2007AP960-CR.,2007AP960-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Jesse J. Franklin, Jr., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 1

State of Wisconsin, Plaintiff-Respondent, v. Jesse J. Franklin, Jr., Defendant-Appellant.

No. 2007AP960-CR.

Court of Appeals of Wisconsin, District I.

Opinion Filed: May 20, 2008.

APPEAL from a judgment and an order of the circuit court for Milwaukee County: WILLIAM SOSNAY and TIMOTHY M. WITKOWIAK, Judges.¹ Affirmed.

Before Curley, P.J., Wedemeyer and Kessler, JJ.

¶ 1 CURLEY, P.J

Jesse J. Franklin, Jr., appeals from a judgment of conviction and an order denying his postconviction motion. A jury found Franklin guilty of one count of possession with intent to deliver tetrahydrocannabinols (THC), contrary to WIS. STAT. § 961.41(1m)(h)2. (eff. Feb. 1, 2003); one count of possession with intent to deliver cocaine, contrary to § 961.41(1m)(cm)3. (eff. Feb. 1, 2003); and one count of being a felon in possession of a firearm, contrary to WIS. STAT. § 941.29(2)(a) (eff. Feb. 1, 2003).²

¶ 2 On appeal, Franklin argues that Attorneys Kohn and Smith were ineffective for failing to fully communicate with him; failing to preserve his speedy trial demand; and failing to follow through and file a Terry stop motion.³ He argues that Attorney Toran was ineffective for failing to investigate and for failing to file a Terry stop motion when Franklin requested him to do so. In addition, he makes the following claims: he was denied his right to a speedy trial; the trial court erred when it concluded that the police officers had reasonable suspicion for an investigative stop and probable cause for his arrest; and the trial court erroneously exercised its discretion in sentencing him. We conclude that Franklin's trial attorneys were not ineffective, he was not denied his right to a speedy trial, and the trial court properly denied his suppression motion. Finally, because the trial court properly exercised its sentencing discretion, we affirm.

I. Background.

¶ 3 The underlying facts are that on July 23, 2003, at approximately 3:30 p.m., two uniformed officers in an unmarked squad car were patrolling the area near 29th and Clybourn Streets in Milwaukee following complaints and recent information they had received pertaining to drug dealing in that area. The officer who was driving the squad car observed Franklin standing in the middle of 29th Street engaged in what appeared to be a drug transaction. Specifically, the officer saw Franklin standing near the driver's side of a vehicle that was stopped in the middle of the street, and Franklin was reaching his right hand through the window. The officer acknowledged that he did not see Franklin either retrieve or give anything to the driver of the vehicle.

¶ 4 The officers circled around the block and proceeded to park on 29th Street. When they pulled up, Franklin was standing at the passenger-side, front window of a van parked on the street. The officer testified that Franklin immediately reached his right hand into the open window and pulled his hand back quickly. Franklin then stepped backwards putting his hands up and throwing a set of keys to the ground while saying, "I didn't do anything, I didn't do anything."

¶ 5 One of the officers conducted a pat-down search of Franklin, while his partner looked in the van's window. His partner saw a plastic shopping bag on the front passenger seat that contained a green leafy material he believed was marijuana. Franklin was arrested. It was later discovered that the plastic shopping bag also contained a box of sandwich baggies, a digital scale, and an off-white chunky substance believed to be cocaine base. Additionally, following a search of the van, the officers found a loaded .9-mm semiautomatic pistol in the console.

¶ 6 At his preliminary hearing, Franklin's attorney requested a speedy trial. Afterward, Franklin moved to substitute Attorney Kohn and his law firm for the attorney who represented him at the preliminary hearing. The trial court granted his request. At the hearing on Franklin's motion for substitution, the trial court noted that the record reflected that a speedy trial demand was made, and in response, both Attorney Kohn and the prosecutor advised the court that they were unaware of the demand. The trial court stated that it was not going to honor the request, which had been made to the court commissioner who presided over the preliminary hearing instead of the trial court judge. Notwithstanding, the trial court gave Attorney Kohn the opportunity to enter a speedy trial demand. Attorney Kohn declined to do so and informed the court that he believed the motion to suppress physical evidence obtained from the scene, which had been filed on Franklin's behalf, would be dispositive.

¶ 7 At the subsequent suppression hearing, the trial court determined that Franklin lacked standing to challenge the search of the vehicle.⁴ Attorney Smith, Franklin's attorney at the time, then scheduled a Terry stop motion for the court's calendar.⁵ Two days before the motion was to be heard, Attorney Smith filed a motion to withdraw as counsel. In his affidavit supporting his withdrawal, Attorney Smith advised the trial court that his request was made following Franklin's representations to the court that counsel was not working in his best interest and following Attorney Smith's discovery of a confidential situation creating a conflict of interest. The trial court granted Attorney Smith's request, and Franklin retained Attorney Toran.

¶ 8 Attorney Toran pursued the motion challenging the officers' Terry stop, however, the hearing did not take place until after several adjournments. The trial court concluded that the officers had reasonable suspicion to believe that Franklin had or was about to commit a crime and that the officers had probable cause to arrest him. Consequently, the trial court denied Franklin's request to suppress the evidence obtained.

¶ 9 On the day that trial was to begin, the court acknowledged that Franklin had filed a motion requesting new counsel, but refused to allow him to obtain another attorney given the numerous adjournments that had occurred and the fact that Attorney Toran was his third attorney. The trial was subsequently adjourned, and on the adjourned trial date, Attorney Toran requested to withdraw as Franklin's attorney. Franklin advised the court that he did not want Attorney Toran to represent him. The trial court again denied the request, concluding that what Franklin "[was] really asking for is additional time and that's really what has been going on here, and this Court, based upon the number of adjournments and the record ... doesn't feel that a further adjournment is warranted here." The jury trial commenced, and Franklin was subsequently found guilty of all the charges against him.

¶ 10 At the sentencing hearing, the trial court concluded that probation was not appropriate based on the serious nature of the offenses and Franklin's prior record. As a result, it sentenced Franklin to the following: four years of imprisonment on count one, possession with intent to deliver THC, comprised of two years of initial confinement and two years of extended supervision; eight years of imprisonment on count two, possession with intent to deliver cocaine, comprised of three years of initial confinement and five years of extended supervision, to run consecutive to the sentence on count one; and three-and-one-half years of imprisonment on count three, felon in possession of a firearm, comprised of eighteen months of initial confinement and two years of extended supervision, to run consecutive to the sentence on count two.

¶ 11 Franklin filed a motion for postconviction relief requesting a Machner hearing to determine if his trial attorneys were ineffective; asking that the trial court examine whether his right to a speedy trial was denied; and seeking sentence modification.⁶ In its decision and order denying Franklin's postconviction motion, the court concluded that Franklin's allegations of ineffective assistance on the part of his trial attorneys were "conclusory and insufficient to warrant a Machner hearing." The court also held that Franklin "[could] not assert that he was denied his constitutional right to a speedy trial when the delays were occasioned almost entirely by the defense." Lastly, the court determined that the trial court properly exercised its discretion in sentencing Franklin such that modification of his sentence was not warranted. Franklin now appeals. Additional facts are provided in the remainder of this opinion as needed.

II. Analysis.

A. Franklin's trial attorneys were not ineffective.

¶ 12 Franklin claims that three of his trial attorneys were ineffective. In order to substantiate his claim, he must make two showings: (1) that counsel's performance was deficient; and (2) that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Although we give deference to the trial court's findings of historical fact, whether the facts found by the trial court show that the lawyer's performance was deficient and, if so, whether the deficient performance was prejudicial, are legal issues that we decide independent of the trial court's determination." State v. Flynn, 190 Wis. 2d 31, 47, 527 N.W.2d 343 (Ct. App. 1994), cert. denied, 514 U.S. 1030 (1995).

¶ 13 "An attorney's performance is not deficient unless it is shown that, `in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.'" State v. Guck, 170 Wis. 2d 661, 669, 490 N.W.2d 34 (Ct. App. 1992) (citation omitted). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. We need not address both of these factors if Franklin insufficiently...