State v. Lott, s. 98-1338-C

• Decision Date: 30 December 1998
• Docket Number: 98-2356-CR,Nos. 98-1338-C,s. 98-1338-C
• Citation: 589 N.W.2d 456,223 Wis.2d 802
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. Willard E. LOTT, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 456

589 N.W.2d 456

223 Wis.2d 802

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE of Wisconsin, Plaintiff-Respondent, v. Willard E. LOTT, Defendant-Appellant.

Nos. 98-1338-CR, 98-2356-CR.

Court of Appeals of Wisconsin.

Dec. 30, 1998.

APPEAL from a judgment and an order of the circuit court for Racine County: RICHARD J. KREUL, Judge. Affirmed.

BROWN, J.

Willard E. Lott appeals his conviction for driving while intoxicated (fourth offense) on grounds of ineffective assistance of counsel. He argues that his trial counsel conducted an inadequate investigation leading to Lott's plea of no contest. Assuming for argument's sake that counsel was ineffective, we agree with the trial court that he was not prejudiced. Counsel's performance does not undermine our confidence in the outcome. This court affirms.

The facts leading up to the arrest are not important for purposes of this decision. All we need recite are Lott's complaints against his trial attorney. He argues that his attorney did not ask Lott what he had to drink or the amount of time he was drinking, did not make copies of the police reports or take notes regarding their contents, failed to notice that the intoxilizer used to take Lott's breath sample was the same type as was at issue in State v. Baldwin, 212 Wis.2d 245, 569 N.W.2d 37 (Ct.App.1997), rev'd, 217 Wis.2d 429, 576 N.W.2d 904 (1998), failed to ask Lott if there were any witnesses who saw him drinking and/or driving and was not aware that State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662 (1997), was pending before the supreme court at the time of Lott's plea.

We turn to State v. Voss, 205 Wis.2d 586, 596, 556 N.W.2d 433, 436 (Ct.App.1996), review denied, 207 Wis.2d 284, 560 N.W.2d 274 (1997), for the answer to most of Lott's complaints. In that case, Voss claimed several instances of ineffective assistance of counsel just as Lott does. We noted that the law mandates a defendant to show prejudice even if counsel is ineffective. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Pitsch, 124 Wis.2d 628, 633, 369 N.W.2d 711, 714 (1985). In Voss' case, he claimed that counsel failed to review evidence prior to the plea. See Voss, 205 Wis.2d at 596, 556 N.W.2d at 436. We wrote: "But, as the State rhetorically asks: what was in the reports that would have changed the outcome?" Id. Voss claimed that trial counsel failed to investigate certain witnesses. We wrote: "But what witnesses would have helped the case? None are mentioned. There is no offer of proof about what the 'witnesses' would have been able to do which would be relevant to Voss' guilt or innocence." Id. We found no evidence submitted by Voss that would have us conclude that counsel's presumed errors would have cast doubt on the reliability of the outcome. See id. at 598, 556 N.W.2d 433, 556 N.W.2d at 437.

As in Voss, we ask the same rhetorical questions. What significance is it that Lott's counsel did not ask about how much he had to drink or the amount of time he was drinking? Lott does not tell us. What information could Lott's attorney have gleaned from the police reports that would have made a significant exculpatory impact in Lott's defense? Lott does not tell us. Were there, in fact, witnesses to Lott's drinking and/or driving that would have helped his case? We do not know. No offer of proof regarding any of these matters and no evidence regarding any of these matters was submitted.

Lott argues that at the time of his plea, the law in Wisconsin was that the intoxilizer which was used in his case did not receive the benefit of an automatic presumption of reliability. See Baldwin, 212 Wis.2d at 245, 569 N.W.2d at 37. Lott acknowledges that while the supreme court eventually reversed the court of appeals in that case, it would have been the law at the time and the trial court would have been duty-bound to use it. So, Lott contends, the case is still viable for purposes of his ineffective assistance of counsel argument.

But Lott assumes too much. First, he assumes that the State would not have asked for and received a stay of proceedings until the supreme court, which had the court of appeals decision under review, had determined whether to affirm or reverse the case.

Second, he assumes that the State would not have been able to prove that the intoxilizer used in Lott's case was accurate and reliable. It was Lott's burden to show by offer of proof or by evidence at the postconviction hearing that he was prejudiced by trial counsel's lack of attention to Baldwin. Therefore, it was his responsibility to prove to the trial court's satisfaction that the State would not have been able to show how the intoxilizer was inaccurate and unreliable. At the postconviction hearing, Lott complained that his trial counsel did not obtain the maintenance history of the intoxilizer used in Lott's case. While that may be true, it was Lott's burden to...