State v. Henyard

• Decision Date: 08 July 2020
• Docket Number: Appeal No. 2019AP548-CR
• Citation: 2020 WI App 51,393 Wis.2d 727,948 N.W.2d 396
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Keith C. HENYARD, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

393 Wis.2d 727

948 N.W.2d 396

2020 WI App 51

STATE of Wisconsin, Plaintiff-Respondent,

v.Keith C. HENYARD, Defendant-Appellant.^†

Appeal No. 2019AP548-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: February 27, 2020

Opinion Filed: July 8, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher W. Rose of Rose & Rose, Kenosha.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sara L. Shaeffer, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

GUNDRUM, J.

¶1 Keith Henyard appeals from a judgment and an order of the circuit court. He claims the court erred in denying his postconviction motion to withdraw his plea. This is so, he argues, because his Sixth Amendment right to the effective assistance of counsel was violated because his counsel, Frank Parise, had an "actual conflict of interest" due to previously presiding as the court commissioner over a hearing in this case, at which hearing Parise accepted Henyard's waiver of his right to a preliminary hearing, found probable cause to believe Henyard had committed a felony, and bound him over for trial. Henyard alternatively claims the court erroneously exercised its discretion in denying his motion for resentencing, which motion was based upon Henyard's contention that the court was biased "against heroin and/or drug delivery offenses," the type of offenses for which Henyard was sentenced in this case.

¶2 We reject Henyard's request for plea withdrawal as he has failed to demonstrate that Parise had an actual conflict of interest that adversely affected his performance and thus failed to show that Parise performed ineffectively. On the second issue, we hold that the circuit court did not err in denying Henyard's motion for resentencing because Henyard failed to rebut the presumption that the court was fair, impartial and without prejudice. We affirm.

Background

¶3 Henyard was charged with four counts of delivering cocaine, one count of possession of cocaine with intent to deliver, two counts of delivering heroin, and one count of possession of heroin with intent to deliver, all as a repeater. On December 28, 2016, he appeared in person and with counsel at a hearing before Court Commissioner Parise, at which hearing Henyard waived his right to a preliminary hearing and, based solely upon the complaint, Parise concluded there was probable cause to believe Henyard had committed a felony and bound him over for trial.

¶4 In May 2017, Henyard retained Parise as counsel in this case. Parise thereafter represented Henyard through his plea and sentencing.

¶5 At an August 7, 2017 pretrial hearing, the circuit court¹ considered increasing Henyard's bond due to the filing of new criminal charges against Henyard. Representing Henyard, Parise argued against the bond increase, noting that Henyard had "made every appearance" in the case. The court nonetheless increased the bond, explaining that it had considered Henyard's good record of appearances, but:

I'm faced with the fact that he has a history of convictions for violence, although they have been reduced in stature by the district attorney, but he has gone down on convictions for personal violence against women before, and he is accused now while he was out on bond in this case of threatening to kill a woman and battering her and I think breaking a couple of bones, and so I'm very uncomfortable with that, given the severity of the charges, and there has been some recent publicity about my thoughts about dealing heroin, too, so that—that would give the defendant an additional incentive to fail to appear ....

(Emphasis added.)

¶6 A plea deal eventually was struck, and Henyard pled to one count each of delivery of cocaine, delivery of heroin, possession of cocaine with intent to deliver, and possession of heroin with intent to deliver, all as a repeater, with the other four counts being dismissed but read in. The court sentenced Henyard on the delivery-of-heroin count to twelve years of initial confinement followed by five years of extended supervision. On the remaining three counts, the court withheld sentence and ordered probation.

¶7 As part of its explanation for the sentence, the circuit court began by referencing a report from a medical examiner in Milwaukee County indicating that in a recent four-day period "11 people died in Milwaukee County from heroin overdose." The court stated, "[W]e have got a lot of heroin out on the streets, and ... there is an economic incentive for people to traffic in this stuff, and so we need to do some things to protect people.... [T]here needs to be a message loud and clear about how unacceptable this kind of behavior is." The court added that it is "simple economics" that "you have to make the activities that you don't favor not worth the risk. If you impose serious, severe penalties on unacceptable behavior and you aggressively enforce the laws, you'll reduce it, and that's what happened in Singapore, which is one of the safest places in the world" because "people who are actually selling drugs suffer" the death penalty. The court also talked about a time in Kenosha when there were judges who believed in very stern sentences for drug dealers and that, in part because of this, "there was a period in the early ‘90s when you couldn't get heroin in Kenosha.... The dealers had all just left. They didn't want to get involved with what was happening." The court stated that crime is not deterred with light sentences; "if there is big money ... people will run that risk, number one, that they won't get caught, and number two, that if they do get caught, they'll get some wimpy sentence."

¶8 The circuit court continued:

Stern sentences, aggressive enforcement drive drug dealers underground. What does that do? That means less young people get involved with heroin in the first place because they can't get it, and if it is available, they can't afford it because the dealers raise their prices—those who still want to do the business—because basic economics—the reward has to outweigh the risk, and so that deters drug use.

.... [I]t discourages [heroin] use [by casual users], and so stern sentences can be ... one of the most effective ways of dealing with the heroin problem, and we ... had better do something because this is just frightening what's going on.

The court expressed further concern for "the number of people who lose their lives to heroin overdoses" and told Henyard he "ha[d] to pay the price for this to be an example to you and to people who know you, to your friends, to people who casually know you, your customers, your providers." The court added that Henyard's case was "aggravated" because he was "a woman beater, too" and further expressed that Henyard's "$80,000 child support arrearage" was "disgraceful."

¶9 Following sentencing, Henyard filed a postconviction motion seeking plea withdrawal or, alternatively, resentencing. As to plea withdrawal, he claimed Parise ineffectively represented him because Parise had a conflict of interest during the representation due to earlier serving as a court commissioner in the case and in that role presiding over Henyard's preliminary hearing waiver, finding probable cause to believe he had committed a felony, and binding him over for trial. Related to his alternative request for resentencing, Henyard argued that the sentencing judge, Bruce Schroeder, was biased against defendants like him who are convicted of delivering heroin or other drugs.

¶10 Parise was the only witness to testify at the postconviction hearing. He testified that when he met and began representing Henyard in May 2017, he did not recognize Henyard "at all"; he believed he had done a conflict check before agreeing to represent Henyard but he did not "catch" that he had presided over the December 28, 2016 hearing; and he did not become aware he had presided over that hearing until he received a letter from Henyard's postconviction counsel in August 2018, a year after Henyard entered his plea. Following testimony, the circuit court asked postconviction counsel, "What did Mr. Parise do that was in any way compromising his representation?" Counsel responded: "Well, I don't know that I can say specifically."

¶11 The circuit court stated that while Parise's representation of Henyard in the same case in which he had previously served as a court commissioner "shouldn't have happened," Parise had "made a mistake." The court added that despite that mistake, "there is absolutely no reason to believe there has been any compromise of [Henyard's] interests ... they have not been in any way affected."

¶12 As support for his request for resentencing, Henyard submitted local newspaper articles related to comments Schroeder purportedly made at the sentencing hearings of other defendants prior to Henyard's August 7, 2017 pretrial hearing. Those articles quoted Schroeder as stating that people who commit the "grave crime" of first-degree reckless homicide for delivering drugs which caused someone's death (a crime of which Henyard was not convicted) "have to suffer severe loss" and reported that Schroeder said he "believed that long prison sentences can deter others from selling heroin" and showed admiration for the effectiveness of Singapore's policy of applying the death penalty in drug trafficking cases. See Deneen Smith, Judge Hopes Stiff Sentence Can Deter Opioid Abuse

, KENOSHA NEWS (Mar. 18, 2018), https://www.kenoshanews.com/news/local/judge-hopes-stiff-sentence-can-deter-opioid-abuse/article_792fec61-4778-515b-84a0-9cca35d1bab7.html; Deneen Smith, 12 Year Prison Sentence for Man Connected to Drug Overdose Death , KENOSHA NEWS (July 21, 2017), https://www.kenoshanews.com/news/local/12-year-prison-sentence-for-man-connected-to-drug-overdose-death/article_945d95f9-d87b-5294-a309-3b520e1a6777.html. The articles also identified Schroeder as stating that "the key to...