State v. Graham
| Decision Date | 06 April 2021 |
| Docket Number | Appeal No. 2018AP2367-CR |
| Citation | 2021 WI App 36,960 N.W.2d 625 (Table) |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Jason M. GRAHAM, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Jason Graham appeals an order denying his postconviction motion to withdraw his February 2013 no-contest pleas to several child sex crimes. Graham argues that his pleas were not knowingly, voluntarily and intelligently entered because the circuit court failed to advise him of the elements of "sexual contact" prior to the entry of his plea to a child enticement charge. He further argues that his attorney provided ineffective assistance by: (1) failing to inform him of the definition of "sexual contact" as it applied to his child enticement charge; (2) failing to investigate and advise him on the defense of entrapment; and (3) misrepresenting to him the strength of the State's case based on supposed DNA evidence that did not, in fact, exist. We affirm.
¶2 On February 25, 2013, Graham entered his no-contest plea to a count of child enticement with the intent to commit sexual contact or sexual intercourse, contrary to WIS. STAT. § 948.07(1) (2019-20), 1 resulting from his attempt to meet a fifteen-year-old girl with whom he had been talking online. The purported fifteen-year-old girl was actually a police officer conducting a sting operation, and Graham was subsequently arrested. Pursuant to a plea agreement, Graham also pleaded no contest to two other sexual assault charges from another case, as well as to a charge of bail jumping from a separate case. A charge of using a computer to facilitate a child sex crime was dismissed and read in. 2 The State further agreed to make a sentencing recommendation of ninety days’ jail on each of the sexual assault charges, and five years’ probation with nine months’ conditional jail time on the child enticement charge. Prior to accepting Graham's pleas, the circuit court confirmed that Graham had reviewed the elements of each of the offenses to which he was pleading with his trial counsel, Lawrence Vesely, that he understood those elements and the constitutional rights he was waiving by pleading no contest, and that he had initialed the jury instructions and waiver of rights form attached to the plea questionnaire.
¶3 The circuit court sentenced Graham to five years’ initial confinement and six years’ extended supervision for the child enticement charge. It also imposed sentences of five years’ initial confinement and six years’ extended supervision for the charge of second-degree sexual assault, nine months’ jail for the charge of sexual intercourse with a child age sixteen or older, and two years’ initial confinement and three years’ extended supervision on the bail jumping charge. All of Graham's sentences were ordered to run concurrently.
¶4 In May 2014, Graham filed a pro se postconviction motion seeking to withdraw his no-contest pleas to each of the three counts. Graham claimed that Vesely provided ineffective assistance by incorrectly informing him that the State had DNA evidence in relation to Graham's charges of second-degree sexual assault and sexual intercourse with a child age sixteen or older. Graham also argued, among other things, that Vesely was ineffective for failing to inform him of the definition of "sexual contact" as that term was used in the child enticement statute, and for failing to raise the defense of entrapment to that same charge.
¶5 The circuit court held an evidentiary hearing on Graham's motion, limiting it to a review of whether Vesely was ineffective as to the DNA evidence issue and for failing to inform Graham of the definition of "sexual contact" as used in the charge of child enticement. On the DNA issue, the court found Vesely's testimony to be more credible than Graham's. In particular, the court accepted Vesely's testimony that he had discussed the potential existence of DNA evidence with Graham, but that their conversations focused primarily on the multitude of charges against Graham and the favorability of the proposed plea bargain. Given this discussion, the court concluded that Graham had not "pled solely because he believed that the State had DNA evidence." The court found Graham's claim—that Vesely had affirmatively told Graham that the State had Graham's DNA to use as evidence in the separate sexual assault case case—not to be credible, and concluded that Vesely had therefore not performed deficiently on the DNA issue. Regarding Graham's claim that Vesely was also ineffective for failing to investigate the DNA evidence, the court found Graham did not allege—much less credibly so—that he would have pled differently if such an investigation had occurred, and he had therefore failed to establish prejudice based on Vesely's actions.
¶6 As to Graham's argument that he was not given the definition of "sexual contact" as it applied to child enticement, the circuit court found that both Vesely and the court had discussed the elements of child enticement with Graham and confirmed he understood them. The court, therefore, concluded that Graham's plea to that charge was knowing, intelligent and voluntary. In all, the court dismissed the entirety of Graham's postconviction claims.
¶7 Graham filed a number of other motions and appeals over the ensuing years, pursuant to various dismissals by Graham and extensions of time as granted by this court. Ultimately, Graham, now represented by counsel, filed a final postconviction motion, arguing that his no-contest plea should be withdrawn because: (1) the circuit court did not inform Graham of the statutory definition of "sexual contact" as it pertained to his child enticement charge; (2) Vesely provided ineffective assistance by failing to inform Graham of this definition; (3) Graham was not informed that his plea could result in him being subject to commitment as a sexually violent person; 3 and (4) Vesely was ineffective for failing to inform Graham of the availability of an entrapment defense. 4
¶8 The circuit court held an evidentiary hearing on this final motion and denied Graham's claims. Although the court first explained that it believed Graham's claims were procedurally barred under WIS. STAT. § 974.06, it stated that it would deny Graham's claims even on their merits, finding that Vesely had not been constitutionally ineffective in his representation. The court limited its review to the new issue on appeal—whether Vesely was ineffective for failing to inform Graham of a potential entrapment defense, or for failing to obtain from the State a copy of Graham's emails with the police officer.
¶9 In particular, the circuit court found Vesely to be a credible witness, and it deemed his strategic decision not to pursue an entrapment defense as objectively reasonable, given its low likelihood of success. The court recounted that, based on the "enormity" of the charges against Graham, Vesely had informed Graham of the lengthy prison sentence that Graham was facing and discussed with him the potential advantages of accepting the State's plea offer. The court also alluded to Vesely's testimony that he did actually discuss the defense of entrapment with Graham before his plea hearing.
¶10 In contrast to Vesely, the circuit court again found Graham not to be credible. It based this determination on a number of "self[-]serving" and unbelievable comments that Graham made during the evidentiary hearing, including Graham's claim that he had only showed up to the meeting that led to his arrest "to prove that [the fifteen-year-old girl] was a cop." The court found that Vesely did not perform deficiently by electing not to pursue an entrapment defense. It further concluded that Graham was not prejudiced by this decision because the facts demonstrated that Graham was a willing participant to the crimes he was charged with and entrapment would not have been a successful defense. Additionally, the court concluded that Vesely did not perform deficiently by failing to obtain a copy of every email sent between Graham and the officer conducting the sting operation, because the relevant contents were detailed in the criminal complaint and police reports. Graham now appeals.
¶11 As an initial matter, the State contends that Graham is procedurally barred from raising the issues in this appeal. Whether a defendant's claims are procedurally barred is a question of law that this court reviews de novo. State v. Tolefree , 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).
¶12 Although the circuit court's decision rejecting Graham's initial claims was issued more than four years before his notice of appeal, Graham correctly notes that the extensions of time granted by this court to file amended postconviction motions or a notice of appeal effectively authorized his right to appeal that initial decision even at this later date. At no time did Graham's right to a direct appeal lapse, as this court consistently extended Graham's time to file his direct appeal of all the issues in his case. Accordingly, we conclude this appeal was timely filed, and we proceed to address Graham's arguments on their merits.
¶13 Graham first argues that the definition of "sexual contact" was not included with his plea questionnaire for the charge of child enticement, and that neither the circuit court nor Vesely discussed that definition with him before he pled. Graham argues that these failures rendered his no-contest plea to the child enticement charge unknowing, involuntary and unintelligent, and he asserts that if he had been aware of the definition, he never would have pled no contest. 5
¶14 Although a defendant's failure to understand the elements of the crimes to which he or she has pled can be the basis for withdrawing a plea, Graham was not required to understand the meaning of "sexual contact" because the definition of that term is not an element of the crime of child enticement. To explain, our supreme...
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