State v. MacMillan
| Decision Date | 08 February 2023 |
| Docket Number | 2020AP1884-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Jeffrey G. MacMillan, 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This opinion will not be published.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 Fond du Lac County No. 2014CF7, GARY R. SHARPE, Judge. Affirmed.
Before Gundrum, P.J., Neubauer and Grogan, 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 Jeffrey G. MacMillan appeals from a judgment of conviction for three counts of second-degree sexual assault of a child as well as an order denying postconviction relief. MacMillan argues he is entitled to plea withdrawal because his second attorney was constitutionally ineffective when advising him about his case and because he felt pressured by his attorney's threat to withdraw. He also argues he is entitled to sentence modification because the circuit court refused to seal his presentence investigation report (PSI) or strike the portions of it that he claims are inaccurate. Finally, he argues the Department of Corrections (DOC) is unlawfully applying 50% of his inmate funds, including gifted monies, to his fines and costs, rather than 25% as ordered by the judgment of conviction.
¶2 We reject MacMillan's arguments. First, we conclude he has not established a manifest injustice justifying plea withdrawal. Second, we conclude that MacMillan has not established a new factor warranting sentence modification. Finally, the case law establishes that MacMillan's claim about the unlawful use of his inmate funds must be initially directed to the DOC, not the sentencing court. We affirm.
¶3 MacMillan was charged in an Amended Criminal Complaint with multiple counts, including five counts of first-degree and three counts of second-degree sexual assault of a child. That child was thirteen-year-old Emily,[1] MacMillan's adopted daughter and the biological daughter of his wife. Emily told police that MacMillan had been sexually assaulting her for months while her mother, a physician, was overseas in pursuit of employment. Emily told the police that MacMillan had video-recording equipment in the bedroom where the assaults took place and that he would photograph her nude. Police executed a search warrant on the premises and seized a laptop containing video recordings and images depicting the sexual assaults.
¶4 MacMillan's first attorney represented him through his arraignment. MacMillan then decided to retain his second trial counsel, who negotiated a plea agreement with the State. Under that agreement, MacMillan would plead no contest to the three second-degree sexual assault of a child charges with the remaining counts (as well as those of a separate firearms case) dismissed and read in at sentencing. The State agreed to recommend a forty-year term of initial confinement at sentencing, with the defense free to argue. After a colloquy, the circuit court accepted MacMillan's pleas and ordered a PSI.
¶5 MacMillan's second attorney withdrew, and he obtained new counsel for the sentencing proceedings. Prior to the hearing his third attorney filed a letter with the court containing approximately fifty challenges to information contained in the PSI. Most of the challenges were to statements by the victim or others, often disputing trivial aspects of their claims.[2] Some of the PSI assertions MacMillan challenged were, however, more consequential, including Emily's mother's assertion that MacMillan was responsible for giving Emily herpes-an assertion that MacMillan attempted to disprove with medical testing.
¶6 The circuit court addressed the disputes concerning the PSI at the inception of its sentencing remarks, commenting that the PSI was "one of the most unusual ones I have ever read" and that it "dealt with an inordinate amount of trivial facts[.]" The court acknowledged that MacMillan's sentencing letter was "extraordinarily helpful," and it stated that it was going to "disregard all of the statements that may be challenged by Mr. MacMillan because, quite frankly, they are really immaterial." The court stated these matters were "just a … side show" and did not concern the underlying conduct that precipitated the sexual assault charges as confirmed by the video recordings and images seized by police. On each count, the court sentenced MacMillan to thirteen years' initial confinement and eight years' extended supervision, to run consecutively for a total initial confinement period of thirty-nine years. The court also imposed a $10,000 fine on each count plus costs based on the "despicable" nature of the offenses.
¶7 MacMillan subsequently filed a postconviction motion. He sought plea withdrawal on the basis that his no-contest pleas were entered as a result of his second attorney's constitutionally ineffective assistance, namely: (1) counsel's erroneous advice that he had waived his right to confront the victim at trial by agreeing to a recorded deposition of the victim and her mother; and (2) his statement that there was "'no way'" MacMillan would receive a forty-year sentence. MacMillan also argued his pleas were precipitated by his second attorney's threat to withdraw in the face of accumulating arrears. MacMillan's motion further sought sentence modification based on the court's apparent refusal to seal the PSI or strike the portions of it MacMillan challenged as inaccurate. Finally, MacMillan sought to amend the judgment of conviction to reflect the "correct" amount of the fines and to preclude the DOC from seizing 50% of his inmate funds, rather than the 25% ordered by the judgment. Following a Machner hearing, the court denied his motion, though it did order that the defense sentencing letter be included as an attachment to the PSI.[3] This appeal follows and largely concerns the same issues as the postconviction motion.
¶8 First, we address MacMillan's Nelson-Bentley motion.[4] To withdraw a plea after sentencing, the defendant must demonstrate by clear and convincing evidence that the plea was entered as a result of a "'manifest injustice[.]'" State v. Bentley, 201 Wis.2d 303, 311, 548 N.W.2d 50 (1996). The "'manifest injustice'" standard is met by demonstrating that the plea was predicated upon ineffective assistance of counsel. Id. To demonstrate ineffective assistance of counsel in the plea context, the defendant must show by reference to objective facts that counsel's representation fell below the constitutional standard for effective assistance and that he or she would not have entered the plea but for counsel's deficient performance. Id. at 312-13; see also Strickland v. Washington, 466 U.S. 668 (1984) (establishing two-prong test for ineffective assistance of counsel).
¶9 MacMillan claims he received ineffective assistance of counsel relating to his pleas as a result of his attorney's erroneous advice regarding a stipulation entered into between his first trial counsel and the State. Emily and her mother were subject to a material witness bond as the mother had employment in New Zealand and intended to return there. In an effort to have that bond removed, their attorney proposed that they be allowed to testify in pretrial proceedings by video deposition and promised they would return in person for a trial if necessary. The State opposed the modification request, citing the necessity of their testimony for the State's case and MacMillan's constitutional confrontation rights.
¶10 After a short recess, the parties arrived at a resolution in which the State agreed to withdraw its objection in exchange for Emily and her mother appearing for pretrial videotaped depositions at the sheriff's department. Emily and the mother's counsel and MacMillan's attorney both specified that the depositions were not intended as a waiver of MacMillan's confrontation rights at trial.
¶11 MacMillan now argues that his plea was entered based upon his second trial counsel's representation that Emily's and her mother's deposition testimony was admissible at trial regardless of the stipulation. This assertion is in conflict with the facts as found by the circuit court.
¶12 The record does not establish generally-and certainly not to a degree sufficient to render the circuit court's factual findings clearly erroneous- that MacMillan's second trial counsel told him definitively that the family deposition testimony would be admissible. Trial counsel stated he may have advised MacMillan that the recorded statements were admissible shortly after he took over the case before he was aware of the stipulation. However, trial counsel's testimony-buttressed by the testimony of MacMillan himself- established that at some point his second attorney became aware of the stipulation and discussed whether it could be enforced vis-à-vis MacMillan's confrontation rights. Counsel testified that he was concerned the State would seek to admit the deposition testimony despite the stipulation, though he considered such efforts unlikely to succeed. Although MacMillan believes the stipulation was ironclad, and therefore his second attorney's concern was unfounded, we cannot in hindsight conclude that trial counsel's theoretical discussion on the issue resulted in deficient performance in the context of advising MacMillan on whether to accept the State's offer.
¶13 In any event, MacMillan has failed to demonstrate any prejudice arising from his second attorney's musings. The admissibility of the deposition testimony was a relevant consideration only if-contrary to...
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