State v. Johnson
| Decision Date | 09 May 2023 |
| Docket Number | 2021AP926-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Robert George Johnson, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
APPEAL from a judgment and an order of the circuit court for Sawyer County No. 2016CF88, JOHN M. YACKEL, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).
¶1 Robert Johnson appeals a judgment, entered upon a jury's verdict, convicting him of one count of first-degree sexual assault of a child under age thirteen, contrary to Wis.Stat. § 948.02(1)(e) (2021-22).[1] Johnson also appeals the order denying his motion for postconviction relief.[2] Johnson argues that he was denied his constitutional right to a speedy trial, that his trial attorneys were constitutionally ineffective, and that his sentence is unduly harsh. We reject Johnson's arguments, and we affirm the judgment and order.
¶2 According to a criminal complaint, on the evening of May 7 2016, Johnson was an overnight guest in his cousin's home, and, after a night of drinking, he sexually assaulted then-six-year-old Alice[3] and told her not to tell anyone. Alice reported the assault to her parents. During a forensic interview, Alice stated that Johnson came into her bedroom and put his finger in her vagina. Alice further stated that Johnson "kissed" her vagina, forced her to touch his penis, and tried to get her to bite his penis. On May 11 2016, the State charged Johnson with first-degree sexual assault of a child.
¶3 The State moved to admit other-acts evidence consisting of uncharged allegations that Johnson had sexually assaulted three girls, two of whom were related to Johnson, ranging in age from four to seven years old. After a hearing, the circuit court granted the motion. Johnson's counsel subsequently moved to withdraw from representation at Johnson's request, and a new attorney was appointed.
¶4 On the first day of trial, defense counsel informed the circuit court that Johnson wanted to enter a plea of not guilty by reason of mental disease or defect ("NGI"). When the court expressed concern over Johnson's late request, defense counsel explained that he had several conversations with Johnson about an NGI plea, and although a retained expert's opinion did not support such a plea, Johnson nevertheless insisted on entering an NGI plea. To alleviate the court's concerns about the impact of this late-stage request, defense counsel proposed that Johnson would waive his right to a jury trial at the second phase-the responsibility phase-of the bifurcated procedure.[4] The court took the proposal "under advisement," stating that it would revisit the issue if the jury found Johnson guilty of the sexual assault charge.
¶5 At trial, the jury watched Alice's forensic interview, in which she described the various ways that Johnson had assaulted her. A forensic scientist in the DNA analysis unit of the State Crime Laboratory testified that there were two sources of DNA found in Alice's underwear, and the mixture was 10,000 times more likely to be a mixture of Johnson's saliva DNA and Alice's DNA than a mixture of Alice's DNA with that of another male. The jury also heard testimony from two of Johnson's nieces, both of whom testified that Johnson sexually assaulted them in their respective homes-one when she was six or seven years old, and the other when she was five years old. During closing arguments, the State highlighted the other-acts evidence to demonstrate that Johnson had a plan to assault Alice and that the assault was not accidental but, rather, intentional. The jury found Johnson guilty of the crime charged.
¶6 The circuit court then returned to Johnson's request to enter an NGI plea. The court recounted that it had reservations about the timing of the request, noting the fact that a prior evaluation did not appear to support such a plea. The court nevertheless ordered an additional expert evaluation of Johnson, noting that it did not want to unnecessarily prolong this matter and it wanted to bring closure to the victim if, in fact, the evaluation did not ultimately support an NGI plea.
¶7 After evaluating Johnson, a licensed psychologist opined, to a reasonable degree of professional certainty, that she could not support an NGI plea on Johnson's behalf. The psychologist concluded: "There is no evidence that, other than because of his alcohol consumption, Mr. Johnson was unable to appreciate the wrongfulness of his conduct and that he was unable to conform his conduct to the requirements of the law at the time of the commission of the alleged offense." The matter therefore proceeded to sentencing, and the circuit court imposed the maximum sentence, consisting of forty years of initial confinement followed by twenty years of extended supervision.
¶8 Johnson filed a postconviction motion raising three claims. First, he argued that he was denied his constitutional right to a speedy trial. Second, he claimed that his trial attorneys were ineffective by failing to properly assert an NGI plea on his behalf and by failing to retain an NGI evaluator of Johnson's choice. Finally, Johnson claimed that his sentence was unduly harsh. Johnson's postconviction motion was denied after a Machner[5] hearing, and this appeal follows.
¶9 Wisconsin courts employ a four-part balancing test to determine whether a person's constitutional right to a speedy trial was violated, considering: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his or her right to a speedy trial; and (4) whether the delay resulted in prejudice to the defendant. State v. Borhegyi, 222 Wis.2d 506, 509, 588 N.W.2d 89 (Ct. App. 1998). The length of the delay is a threshold consideration, and the inquiry goes no further unless the reviewing court concludes that it is presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652 (1992); State v. Leighton, 2000 WI.App. 156, ¶7, 237 Wis.2d 709, 616 N.W.2d 126. Generally, a post-accusation delay approaching one year is considered to be presumptively prejudicial. Borhegyi, 222 Wis.2d at 510.
¶10 Speedy trial claims are assessed based on the totality of the circumstances. State v. Urdahl, 2005 WI.App. 191, ¶11, 286 Wis. 2D 476, 704 N.W.2d 324. Generally, none of the four factors are "either a necessary or sufficient condition" to finding a speedy trial violation. Barker v. Wingo, 407 U.S. 514, 533 (1972). Rather, the four factors must be contemplated "together with such other circumstances as may be relevant." Id. The remedy for a defendant whose constitutional right to a speedy trial is violated is dismissal of the charges. Urdahl, 286 Wis.2d 476, ¶11.
¶11 Johnson asserts that his pretrial incarceration of nearly three years violated his constitutional right to a speedy trial, requiring that his conviction be vacated. Although Johnson acknowledges the four-part balancing test, he provides no meaningful discussion of the test as applied to his case. This court need not address an issue so lacking in organization and substance that for the court to decide the issue, it would first have to develop it. See State v. Pettit, 171 Wis.2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Even applying the test, however, Johnson's claim fails.
¶12 If, as here, the delay is presumptively prejudicial, the length of the delay is one factor in the four-part balancing test. Doggett, 505 U.S. at 652. As one of the four factors, "the presumption that pretrial delay has prejudiced the accused intensifies over time." Id. Although the State acknowledges that this factor likely weighs in Johnson's favor, it argues that other factors diminish the significance of the delay. We agree.
¶13 Regarding reasons for the delay, courts weigh delay heavily against the State where the State makes "[a] deliberate attempt … to delay the trial in order to hamper the defense." Urdahl, 286 Wis.2d 476, ¶26. Delays caused by the State's negligence or overcrowded courts also count against the State, though courts weigh those delays less heavily. Id. Many types of delays do not count at all, including delays caused by witness unavailability, see id., the litigation of pretrial motions, see Scarbrough v. State, 76 Wis.2d 87, 101, 250 N.W.2d 354 (1977), and the ordinary demands of the judicial system, see Norwood v. State, 74 Wis.2d 343, 354, 246 N.W.2d 801 (1976). Additionally, "if the delay is caused by the defendant, it is not counted." Urdahl, 286 Wis.2d 476, ¶26.
¶14 Here, roughly the first year of delay was reasonably attributed to the ordinary demands of the judicial system and the litigation of a pretrial motion. Johnson demanded a speedy trial on April 25, 2017, but he subsequently withdrew that request to pursue retesting of DNA. At least eight months passed before the DNA was retested, and Johnson makes no claim that this delay was attributable to the State. Johnson discharged his first trial attorney in July 2018, and the remainder of the time until the April 2019 trial involved pretrial hearings and the litigation of a pretrial motion. Because significant periods of delay were attributable to Johnson, this factor favors the State. Similarly, the third factor- whether Johnson asserted his speedy trial right-also favors the State, as Johnson made, but withdrew, a speedy trial request.
¶15 With respect to the fourth factor-prejudice to the defendant- courts assess prejudice in light of the interests that the speedy trial right protects: (1)...
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