State v. Habram, Appeal Nos. 2017AP2399-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: PER CURIAM.
• Citation: 2019 WI App 8,926 N.W.2d 505 (Table),385 Wis.2d 847
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Colin J. HABRAM, Defendant-Appellant.
• Docket Number: Appeal Nos. 2017AP2399-CR,2017AP2400-CR
• Decision Date: 16 January 2019

385 Wis.2d 847
926 N.W.2d 505 (Table)
2019 WI App 8

STATE of Wisconsin, Plaintiff-Respondent,
v.
Colin J. HABRAM, Defendant-Appellant.^†

Appeal Nos. 2017AP2399-CR
2017AP2400-CR

Court of Appeals of Wisconsin.

DATED AND FILED January 16, 2019

PER CURIAM.

¶1 Colin Habram appeals judgments convicting him of maintaining a drug-trafficking place, arson, and intentional mistreatment of animals and an order denying his motion for postconviction relief. We affirm.

¶2 Habram’s troubles stem from several cases, two consolidated here for appeal. The first arose after, incident to a search warrant of Habram’s residence, police found drugs and drug paraphernalia. He was charged with maintaining a drug-trafficking place, possession of an illegally obtained prescription, and possession of drug paraphernalia, all as a repeater.

¶3 In the second case, Habram called 911 at about 3:30 a.m. saying his house was on fire. He told responding officers that he came home to find a door pried open, his kitchen "slightly trashed" with broken glasses and a bathroom cabinet door on the floor, his bedroom dresser ransacked, and "black, thick, heavy smoke" pouring from a spare bedroom he rented out. Habram denied any involvement and did not suspect the roommate, who was in jail at the time. He suggested other possibilities, however: people who occasionally "crashed" there, armed individuals looking for money, someone who had heard the rumor that he was a "snitch," or a man who allegedly had threatened him and the roommate because the roommate owed the guy money.

¶4 A few hours later, Fond du Lac Police Department Detective Lee Mikulec, who responded to the scene, and Brian Liethen, a special agent assigned to the Office of the State Fire Marshal, contacted Habram. Both Mikulec and Liethen are trained in fire inspection. They asked Habram if he would be willing to come down to the station. The officers granted Habram’s request to shower first and came back for him an hour later. Habram then asked to "reschedule," saying he would come to the station the next morning.

¶5 When Habram did not show up, Mikulec attempted to call him but Habram did not answer, so the officers went to the hotel where he was staying. Habram said he overslept. They did not interview him there, as a woman was in the bed and the room had little other furniture where they could sit. He agreed to accompany them to the station and rode with Mikulec.

¶6 Habram was seated in an unlocked interview room. He was not handcuffed or frisked. Liethen told Habram he was "not going to arrest [him] or anything like that," and that Habram could take bathroom or cigarette breaks, although he would be accompanied to smoke so he could get back inside the building. He also was offered food and beverages.

¶7 The total interview lasted just under three hours, most of it gathering factual information such as the timeline of events, the layout of the house and its contents, and Habram’s home ownership and insurance coverage. Mikulec testified that the overall tone was "extremely mellow" and conversational.

¶8 About eighty minutes in, Habram asked, "I don’t mean to sound rude or anything, but do you know how much longer we’ll be?" Liethen responded, "I don’t think we’ll be too much longer." After another twenty minutes, Liethen said he needed "two seconds" to speak to Mikulec on another case "and we’ll be right back in." Habram asked, "Am I good to go then or what?" Liethen replied, "I don’t think you’ll be much longer here. We’ll get you right back." Habram said he could walk back to the hotel, as it was "not far" from the station.

¶9 In the last approximately forty minutes, the tone changed. Liethen told Habram he did not believe Habram’s story because, based on the fire specialists’ many-hours inspection of the scene, he believed the fire was deliberately set and that the evidence pointed only to Habram. Habram at first denied it, but ultimately admitted that, depressed over his heroin addiction, precarious financial situation, and a failed love relationship, he decided to end his life, and set the fire using lighter fluid as an accelerant. His dog and cat perished. After signing a written statement, Habram was allowed to leave the police station. At no point was Habram given warnings required by Miranda v. Arizona , 384 U.S. 436 (1966).

¶10 Habram was arrested the next day. He was charged with arson of a building, arson of a building with intent to defraud, first-degree recklessly endangering safety of police and fire personnel, and intentionally mistreating animals, all with the repeater enhancer. He faced over 123 years’ imprisonment. Pursuant to a plea agreement, Habram pled no contest to the arson, animal mistreatment, and drug-trafficking-place charges, cutting his exposure to fifty-five years and six months. The remaining charges were dismissed and read in, as were charges from four other cases not part of this appeal. He was sentenced to an aggregate twenty-seven years’ imprisonment.

¶11 Postconviction, Habram moved to withdraw his no-contest plea on grounds of ineffective assistance of counsel. He contended defense counsel, Jeffrey Haase, failed to move to suppress his confession to police before he decided to plead, and that the motion would have been successful, as Mikulec and Liethen subjected him to custodial interrogation without Miranda warnings.

¶12 At the hearing on the postconviction motion, Haase testified that he reviewed the recording of Habram’s police-station interview, that he was aware that Habram had not received Miranda warnings, and that whether to seek the statement’s suppression was one of the first issues he considered. He testified that he discussed with Habram the possibility of seeking to suppress it on both involuntariness, due to heroin intoxication, and Miranda grounds and that he told Habram the Miranda claim was the stronger argument.

¶13 Haase testified that he and Habram discussed the State’s plea offer at least four or five times. Habram was disappointed a proposal to send him to drug court was rejected but his main dissatisfaction was the lack of a sentencing cap. As the prosecutor repeatedly refused to make a better offer, Haase said he feared that, in his experience with the particular prosecutor, requiring the State to litigate a suppression motion could result in withdrawal of the offer. Haase acknowledged to Habram that, because the plea deal meant pleading to some "very serious charges," it "isn’t a great offer, but this is ... what we’re getting." Noting that the State’s offer reduced Habram’s sentencing exposure by about seventy years, Haase said he explained the risk of being convicted of all the charged offenses at trial but whether to plead was solely...