State v. Harbor

• Decision Date: 10 May 2011
• Docket Number: No. 2009AP1252–CR.,2009AP1252–CR.
• Citation: 797 N.W.2d 828,2011 WI 28,333 Wis.2d 53
• Parties: STATE of Wisconsin, Plaintiff–Respondent,v.Shantell T. HARBOR, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

333 Wis.2d 53

797 N.W.2d 828

2011 WI 28

STATE of Wisconsin, Plaintiff–Respondent,

v.Shantell T. HARBOR, Defendant–Appellant–Petitioner.

No. 2009AP1252–CR.

Supreme Court of Wisconsin.

Argued Feb. 01, 2011.Decided May 10, 2011.

For the defendant-appellant-petitioner there were briefs and oral argument by Joseph E. Redding, Glojek Limited, Milwaukee.For the plaintiff-respondent the cause was argued by Michael C. Sanders, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.ANN WALSH BRADLEY, J.

¶ 1The petitioner, Shuntell T. Harbor,¹ seeks review of an unpublished decision of the court of appeals affirming a circuit court order denying Harbor's postconviction motion.²Harbor contends that previously unknown information about her mental health, her addiction issues, and her traumatic upbringing constitute new factors that justify modification of her sentence.In the alternative, she asserts that she received ineffective assistance of counsel when her attorney failed to investigate or present these factors to the circuit court during sentencing.

¶ 2We conclude that Harbor has not presented any new factor that justifies modification of her sentence.The facts related to Harbor's mental health do not constitute a new factor because Harbor's mental health issues were known to the circuit court and taken into consideration at the time the court imposed sentence.Further, the circuit court appropriately exercised its discretion when it concluded that facts related to Harbor's addiction issues and her traumatic upbringing did not justify sentence modification.

¶ 3We further determine that Harbor has not demonstrated that she received ineffective assistance of counsel because she has not shown that her attorney's alleged shortcomings were prejudicial.She has failed to show “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.”³Accordingly, we affirm the court of appeals.

I

¶ 4The facts of this case are undisputed.Based on three separate incidents that occurred in February of 2008, Shuntell Harbor was charged with three counts: attempted robbery with threat of force, attempted armed robbery with threat of force, and armed robbery with threat of force.Brief descriptions of each incident are taken from the criminal complaint.

¶ 5 The attempted robbery charge is based on the statement made by a teller at Community Financial, a check cashing service.According to the statement, Harbor approached the window and handed the teller a note demanding money.The note also suggested that Harbor would shoot if the teller said anything.After the teller pressed the alarm, Harbor fled.

¶ 6 Later the same day, Harbor entered another branch location of Community Financial and approached the lead teller.The attempted armed robbery charge is based on the statement made by that teller.According to the statement, Harbor passed the teller a piece of paper, but the writing was illegible.After the teller told her to rewrite the message, Harbor became angry.Ultimately, the teller could make out the words “money” and “shoot,” and she determined that Harbor was attempting to stage a robbery.When the teller failed to give her any money, Harbor put her hand in her pocket in a threatening manner as if she had a gun and stated, “Oh, you're not afraid of this?”The teller left the window and Harbor left the business.

¶ 7 The armed robbery charge is based on an incident that occurred 10 days later at a Hallmark store.The store's cashier told the police that Harbor approached the counter, asked the cashier for money, and then pulled out a butcher knife and pointed it directly at the cashier.The cashier gave Harbor money from both registers and from her wallet, totaling approximately $100.

¶ 8 Harbor was picked up when she jaywalked in front of a police officer.The officer observed that Harbor was carrying a butcher knife in her jacket pocket, and she was placed in custody for carrying a concealed weapon.Harbor made statements implicating herself in all three crimes.Because she was on probation at the time that these offenses were committed, her probation was revoked.

¶ 9 Harbor waived her preliminary hearing.After acknowledging that she was facing a maximum punishment of 67.5 years incarceration and a $170,000 fine on the three charges, she pled guilty to all three counts.

¶ 10 During the plea colloquy, the court circuit expressed an awareness that Harbor was taking medication:

The Court: Have you had any drugs, medication or alcohol prior to coming to Court today?

The Defendant: No.

The Court: According to this you did, or at least you're receiving some treatment.

The Defendant: Medication, yeah.

¶ 11The court confirmed that Harbor's medication was not affecting her ability to understand and appreciate what was happening in court or her ability to make decisions about the case.Ultimately, it accepted Harbor's guilty plea.It did not order a presentence investigation report (PSI).⁴

¶ 12 Throughout the plea hearing and the sentencing phase of the proceedings, Harbor was represented by Attorney Gregory Parr.Although Attorney Parr had the opportunity to present a sentencing memorandum at the sentencing hearing, he did not do so.

¶ 13 During sentencing, the prosecutor focused on Harbor's prior convictions: a 1992 conviction for robbery and theft, a 1993 conviction for armed robbery, and a 2006 escape conviction.He argued that Harbor had been in and out of prison for years due to probation revocations, and that she had been released from Taycheedah Correctional Institution only four months prior to committing the three offenses for which she was being sentenced.He contended that the three offenses were themselves serious incidents, and “it's just made more serious by the fact that the defendant does have a prior criminal record.”Ultimately, the prosecutor recommended “a substantial prison sentence ... consecutive to any other sentence she is currently serving,” plus restitution.

¶ 14 By contrast, Harbor's attorney recommended “a global sentence for these three offenses of ten years in the Wisconsin State prison” consisting of five years of initial confinement and five years extended supervision.He told the court that Harbor's “record is as indicated by the district attorney.It's not the most extensive.”He argued that Harbor had employment history that “is substantial, covering a period of approximately seven years of employment.”

¶ 15 Defense counsel asserted that Harbor's mental health was a mitigating factor.He contended that Harbor was “really an inept robber” and “[i]t's almost like she was asking to be caught.And that may be not too surprising” because she suffers “from both bipolar disorder and fairly severe depression.”“In 2007 alone,” defense counsel explained, Harbor was “treated as an in-patient at the Milwaukee County Mental Health Complex on three different occasions.She takes medication for her bipolar disorder and her depression.”⁵

¶ 16 Defense counsel argued that Harbor's mental health background “goes someway towards explaining” the offenses.He contended that the sentence he had recommended was “an appropriate one because of her psychological problems” and because of other mitigating factors.He noted that Harbor fully cooperated with the police when arrested, that she gave police complete statements about the crimes, that she promptly accepted responsibility, and that she pled guilty at an early opportunity.

¶ 17 In determining the sentence, the court filled out a sentencing worksheet.The worksheet indicates that the court considered some factors to be aggravating and others mitigating.The court considered Harbor's criminal record and the characteristics of the offenses to be among the aggravating factors.It considered other factors, including Harbor's attitude and her mental health problems to be mitigating.⁶

¶ 18The court acknowledged that Harbor's mental health was a mitigating factor.However, it concluded that her psychological issues could be controlled through medication and that Harbor was responsible for her failure to do so:

Now, I grant you, you may have some issues with your mental health.But you know, when you have issues with mental health, most of these things, including your type of manic-depressive disorder or whatever it is, it's very much controllable by medications....And I'm not talking as if I'm Dr. Moroney because I'm not.But I do know that it's controllable.And then you go ahead and you lead a productive socially oriented and appropriate lifestyle.

For whatever reason, you have not done that.And I can't tell you why.I don't know if you've gone off your medications and you tried to control your situation with other controlled substances which then do nothing more than exacerbate or worsen the situation....You've got a very precarious chemical makeup in your body, more so than most people because of this disorder....

And what that means is there's very little tolerance that you have that when you go out of whack that you can stay within that appropriate level to be able to function in a law-abiding and reasonable way....You better understand that.You better start functioning within your limitations and then hopefully follow the treatment regimens that are going to be given to you, because if you don't, we're not going to be tolerating this type of behavior....

¶ 19The court considered Harbor's failure to abide by the law after having been convicted of similar crimes in her youth to be an aggravating factor that made her a risk to the public:

The fact of the matter is that you've returned to your days of being a foolish youth....[W]hen you are 34 years of age and you've had the multiple experiences in life that you've had ... you should have...