State v. Jacobsen

• Decision Date: 10 December 2013
• Docket Number: No. 2013AP830–CR.,2013AP830–CR.
• Citation: 842 N.W.2d 365,2014 WI App 13,352 Wis.2d 409
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Tina M. JACOBSEN, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

352 Wis.2d 409

842 N.W.2d 365

2014 WI App 13

STATE of Wisconsin, Plaintiff–Respondent,

v.Tina M. JACOBSEN, Defendant–Appellant.

No. 2013AP830–CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 5, 2013.

Opinion Filed Dec. 10, 2013.

On behalf of the defendant-appellant, the cause was submitted on the briefs of John Miller Carroll of John Miller Carroll Law Office, Appleton.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Maura FJ Whelan, assistant attorney general, and J.B. Van Hollen, attorney general.

Before HOOVER, P.J., MANGERSON and STARK, JJ.

STARK, J.

¶ 1 Tina Jacobsen appeals a judgment convicting her of three counts of theft in a business setting and an order denying her postconviction motion for plea withdrawal. Jacobsen was charged with eight offenses in connection with the theft of nearly $500,000 from her employer. The charges were based on 289 individual thefts that took place over approximately six years. On appeal, Jacobsen argues her trial attorney was ineffective by failing to advise her that the charges could be challenged as duplicitous or multiplicitous and by failing to seek dismissal of the complaint on those grounds.

¶ 2 We conclude Jacobsen's trial attorney was not ineffective because the charges were not duplicitous or multiplicitous. We reject Jacobsen's argument that the State was required to charge her with either a single offense in connection with her entire course of conduct or with separate offenses for each of the 289 individual thefts. Instead, we conclude the State had discretion to charge Jacobsen with multiple offenses, each of which was based on a group of thefts that occurred during a specified time period. We therefore affirm the judgment of conviction and the order denying Jacobsen's postconviction motion.

BACKGROUND

¶ 3 The State filed an eight-count criminal complaint against Jacobsen on May 31, 2011. The charges arose from Jacobsen's multi-year embezzlement of funds from her employer, the Community Blood Center (CBC). An information filed on July 12, 2011, contained the same eight counts.

¶ 4 The complaint alleged that Jacobsen used two distinct schemes to misappropriate funds from CBC. Most of the thefts were accomplished by Jacobsen's practice of “adding large amounts of money to her paycheck and categorizing them as reimbursements.”The remainder of the thefts were part of a “fraudulent check writing scheme[,]” in which Jacobsen purported to issue checks to pay vendors, but actually made the checks payable to herself.

¶ 5 Counts 1 through 4 charged Jacobsen with theft in a business setting of an amount greater than $10,000, a Class G felony. SeeWis. Stat. § 943.20(1)(b), (3)(c).¹ Count 1 alleged that Jacobsen transferred more than $10,000 from CBC to herself between January 1 and December 31, 2009. According to forensic accountant Allan Mader, Jacobsen's excess reimbursements in 2009 totaled $33,302.75. Count 2 alleged that Jacobsen transferred more than $10,000 from CBC to herself between January 1 and December 31, 2010. Mader determined Jacobsen's excess reimbursements in 2010 totaled $81,853.84. Count 3 alleged that Jacobsen transferred more than $10,000 from CBC to herself between January 1 and April 12, 2011. Mader determined Jacobsen's excess reimbursements during that period totaled $32,000.

¶ 6 Count 4 alleged that Jacobsen converted to her own use more than $10,000 in “negotiable instruments” from CBC between January 1 and April 12, 2011. According to Mader, Jacobsen obtained $17,695.96 from CBC by issuing seventeen fraudulent checks to herself between March 15 and April 30, 2011. After Mader completed his analysis, CBC provided police with documentation showing that Jacobsen had used fraudulent checks to obtain an additional $300,000 from CBC.

¶ 7 Count 5 charged Jacobsen with theft in a business setting of an amount greater than $5,000 but not exceeding $10,000, a Class H felony. SeeWis. Stat. § 943.20(1)(b), (3)(bm). The complaint alleged that Jacobsen transferred between $5,000 and $10,000 from CBC to herself between January 1 and December 31, 2008. Mader determined Jacobsen's excess reimbursements in 2008 totaled $5,725.46.

¶ 8 Count 6 charged Jacobsen with fraudulent writings, a Class H felony. SeeWis. Stat. § 943.39(1). The complaint alleged that, on or about March 15, 2011, Jacobsen, “being an employee of a corporation, with intent to defraud, did falsify any record belonging to that corporation[.]”

¶ 9 Counts 7 and 8 each charged Jacobsen with theft in a business setting of an amount not exceeding $2,500, a Class A misdemeanor. SeeWis. Stat. § 943.20(1)(b), (3)(a). Both counts alleged that Jacobsen transferred unspecified amounts of CBC's money to herself on or about January 1, 2006.

¶ 10 Jacobsen ultimately pled no contest to Counts 1, 2, and 5. The remaining counts were dismissed and read in at sentencing. During the plea hearing, Jacobsen admitted, “When I was employed at [CBC], I had written company checks to myself and also had changed payroll dollar amounts to myself to support a gambling addiction that I do have.” She also stated, “I read the Criminal Complaint and I do not dispute the items that are listed.” Jacobsen's attorney conceded, “[T]here's a sufficient factual basis [for Jacobsen's plea] contained within the Criminal Complaint. And Ms. Jacobsen does not dispute that at this point.” Jacobsen agreed that the total amount she took from CBC was in “the ballpark of $470,000[.]” At sentencing, the State informed the court its final estimate of the amount taken was $485,630.80. Jacobsen agreed with that estimate. The president of CBC told the sentencing court Jacobsen had “engaged in theft on 289 separate occasions[.]”

¶ 11 Jacobsen received consecutive sentences totaling five years' initial confinement and thirteen years' extended supervision. She subsequently moved for postconviction relief, arguing, among other things, that she was entitled to withdraw her pleas because her trial attorney was ineffective by failing to consult with her regarding multiplicity and duplicity challenges to the charges and by failing to “move the court to dismiss the criminal complaint based on the grounds of multiplicity, duplicity, vagueness and/or indefiniteness [.]” (Capitalization omitted.) At the Machner² hearing, Jacobsen's trial attorney testified he did not challenge the complaint on duplicity or multiplicity grounds because he concluded those issues were meritless after reviewing “the applicable law and jury instructions.” The circuit court denied Jacobsen's postconviction motion, and this appeal follows.

DISCUSSION

¶ 12 To withdraw a guilty or no contest plea after sentencing, a defendant must prove “by clear and convincing evidence that withdrawal is necessary to correct a manifest injustice.” State v. James, 176 Wis.2d 230, 236–37, 500 N.W.2d 345 (Ct.App.1993). Ineffective assistance of counsel can constitute a manifest injustice entitling the defendant to withdraw his or her plea. State v. Berggren, 2009 WI App 82, ¶ 10, 320 Wis.2d 209, 769 N.W.2d 110.

¶ 13 To prevail on an ineffective assistance claim, a defendant must establish both that counsel performed deficiently and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the defendant fails to make a sufficient showing on one prong of the Strickland test, we need not address the other. Id. at 697, 104 S.Ct. 2052. To prove deficient performance, a defendant must point to specific acts or omissions by counsel that are “outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. To demonstrate prejudice, a defendant seeking plea withdrawal must show “ ‘that there is a reasonable probability that, but for the counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial.’ ” State v. Bentley, 201 Wis.2d 303, 312, 548 N.W.2d 50 (1996) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

¶ 14 Our review of an ineffective assistance claim presents a mixed question of fact and law. State v. Erickson, 227 Wis.2d 758, 768, 596 N.W.2d 749 (1999). We uphold the circuit court's findings of fact unless they are clearly erroneous. Id. However, the ultimate determinations of whether counsel's performance was deficient and prejudicial are questions of law that we review independently. Id.

¶ 15 Here, Jacobsen argues her trial attorney should have consulted with her about challenging the complaint as duplicitous or multiplicitous and should have moved to dismiss the complaint on those grounds. However, Jacobsen does not argue that Count 6, the fraudulent writings charge, was either duplicitous or multiplicitous. We therefore limit our discussion to the various theft charges.

¶ 16 In addition, although one of the headings in the argument section of Jacobsen's brief states that her trial attorney should have moved to dismiss the complaint because it was vague or indefinite,Jacobsen does not develop any argument supporting that theory. We need not address undeveloped arguments. See State v. Pettit, 171 Wis.2d 627, 646–47, 492 N.W.2d 633 (Ct.App.1992). Further, Jacobsen's postconviction motion raised arguments that she does not renew on appeal. Those arguments are deemed abandoned, and we do not address them. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis.2d 475, 491, 588 N.W.2d 285 (Ct.App.1998).

I. Duplicity

¶ 17 Jacobsen contends her trial attorney was ineffective by failing to challenge the charges against her as duplicitous. A complaint is duplicitous when it joins two or more separate offenses in a single count. State v. Copening, 103 Wis.2d 564, 572, 309 N.W.2d 850 (Ct.App.1981). “A duplicitous charge is defective because the jury may find the defendant guilty without the state proving each element of the offense beyond a reasonable doubt.” Id.

¶ 18 However,...