State v. McBride, Appeal No. 2020AP385-CR

• Docket Number: Appeal No. 2020AP385-CR,Appeal No. 2020AP386-CR
• Decision Date: 02 June 2021
• Parties: STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. WILLIE M. MCBRIDE, DEFENDANT-APPELLANT.
• Court: Court of Appeals of Wisconsin

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
WILLIE M. MCBRIDE, DEFENDANT-APPELLANT.

Appeal No. 2020AP385-CR
Appeal No. 2020AP386-CR

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

June 2, 2021

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. Nos. 2018CF3528
2018CF5028

APPEALS from judgments and an order of the circuit court for Milwaukee County: DENNIS R. CIMPL and MICHELLE ACKERMAN HAVAS, Judges. Affirmed.

Before Brash, P.J., Dugan and White, 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).

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¶1 PER CURIAM. Willie M. McBride appeals his judgments of conviction entered after he pled guilty to several charges under a global plea agreement for two separate cases. He also appeals the order denying his postconviction motion. McBride argues that he is entitled to withdraw his pleas because one of his cases should have been dismissed due to a violation of his right to a speedy trial. He further asserts that plea withdrawal is warranted because his trial counsel was ineffective for failing to request separate sentencing hearings for the two cases and for not requesting a presentence investigation (PSI) report.

¶2 Additionally, McBride argues that the trial court¹ relied on improper factors in sentencing him in both cases at the same time, and he is seeking sentence modification. He also contends that the court erroneously exercised its sentencing discretion in not making McBride eligible for the Challenge Incarceration Program (CIP). Furthermore, McBride asserts that he is entitled to sentence credit for the time he was incarcerated on a third case for which he was acquitted.

¶3 The postconviction court denied McBride's postconviction motion in its entirety, without a hearing, stating that all of his claims were without merit. We agree and, therefore, affirm.

BACKGROUND

¶4 The charges against McBride stem from incidents that occurred in March 2018. In the first incident, C.J.R. left a bar on South 2nd Street in Milwaukee shortly after midnight on March 21, 2018, and entered the backseat of a car that pulled up next to him, believing that it was his Uber ride. The driver confirmed he

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was with Uber, but C.J.R. noticed that there was another male in the front seat. The driver turned down a side road, stopped the vehicle, and ordered C.J.R. to get out of the car.

¶5 One of the men then ordered C.J.R. to give them "everything he had." C.J.R. gave them his wallet and his cell phone. The men also demanded C.J.R. give them his watch; he asked to keep it because it had "sentimental value," but one of the men punched him in the face, knocking him to the ground, and "ripped" the watch from his wrist. The men then got back into the vehicle and drove away. C.J.R. reported the robbery to the Milwaukee Police Department.

¶6 The second incident occurred on March 24, 2018, in West Allis. Officers from the West Allis Police Department were investigating a report of a subject with a gun when they observed a silver Pontiac Vibe—which matched the description of the vehicle involved, as provided by the person who had called in the complaint—in a parking lot with its engine running. The vehicle appeared unoccupied; the officers ran the license plate and discovered it was stolen. The officers then approached the vehicle and observed a Black male, later identified as McBride, laying on the backseat. McBride then jumped into the driver's seat and attempted to flee, striking a police squad several times as well as another parked car. One of the officers smashed the driver's side window and grabbed McBride's arm, but had to let go to avoid being struck by the vehicle, and McBride was able to flee the parking lot at a high rate of speed.

¶7 The officers subsequently interviewed the person who had called with the gun complaint, and that person was able to provide them with McBride's name. The officers then identified McBride from a photograph as the person who fled the parking lot in the silver Pontiac.

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¶8 The Pontiac was found by the police a short time later, abandoned with significant damage. A cell phone was recovered from the vehicle which contained several photos of McBride. Officers were also able to obtain DNA samples from the steering wheel, gear shift, and inside door handle, which were later determined to match McBride's DNA.

¶9 A detective investigating that incident in West Allis subsequently called the Milwaukee Police Department to share information discovered in his investigation of McBride. The West Allis detective had found a receipt from a pawn shop for a Bulova watch that was pawned on April 11, 2018. McBride was identified in a surveillance video from the pawn shop as the person who pawned the watch, and C.J.R. identified the pawned watch as the one that was stolen from him.

¶10 The police in West Allis had also searched McBride's cell phone and discovered text messages he had sent to his girlfriend on the night C.J.R. was robbed. In the texts, McBride told her that a "White dude" who was "drunk" had gotten into his car because "he believed it was a cab," and that McBride was going to rob him.

¶11 Thus, for the first incident McBride was charged with robbery with the use of force as a party to a crime, with a habitual criminality repeater enhancer. He was also charged with felony bail jumping because at the time of the robbery of C.J.R., McBride was out on bond in another unrelated felony case, with the condition that he was not to commit any new crimes.

¶12 For the second incident, McBride was charged with five counts: operating a vehicle without the owner's consent, fleeing an officer causing damage to property, resisting an officer causing soft tissue damage to the officer,

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second-degree recklessly endangering safety, and felony bail jumping, all with a habitual criminality repeater enhancer.

¶13 The complaint for the first incident was filed on July 27, 2018. At that time, McBride was in custody on an unrelated charge in a separate case that is not at issue here. On August 20, 2018, McBride demanded a speedy trial for the case relating to the first incident, pursuant to WIS. STAT. § 971.10 (2019-20).² The State asked for a continuance on October 24, 2018, due to a delay in obtaining evidence from McBride's cell phone carrier. McBride moved to dismiss the case, but the trial court determined that a continuance was appropriate because the defense had previous notice that this evidence was being sought, and the State had been working diligently to obtain it. However, because the trial date had to be adjourned outside of the statutory time frame for meeting a speedy trial demand, the court amended McBride's cash bail to a personal recognizance bond, in accordance with § 971.10(4).

¶14 The complaint relating to the second incident was filed on October 22, 2018. The cases were not joined; however, the State and McBride subsequently reached a global plea agreement in February 2019 for both cases. Pursuant to that plea agreement, McBride pled guilty to the felony bail jumping charge from the first incident, and with regard to the second incident, he pled guilty to the charges of fleeing an officer causing damage to property, resisting an officer causing soft tissue injury to the officer, and second-degree recklessly endangering safety. Additionally, the habitual criminality repeater enhancers were removed from those charges. The other charges were dismissed but read in at sentencing.

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¶15 McBride was sentenced in both cases in March 2019. The trial court imposed a global sentence of six years of initial confinement and five years of extended supervision. The court did not grant McBride eligibility for the CIP. Additionally, the court noted that McBride would receive a sentence credit of 232 days.

¶16 McBride filed a postconviction motion in February 2020 seeking to withdraw his pleas. He argued that the first case should have been dismissed when the State was unable to comply with his speedy trial request. He also asserted that his trial counsel was ineffective for failing to request that the cases be sentenced separately, and for failing to request a PSI report, which he claimed would have provided more details about his background and his efforts to support his family, and he contended that such information could have persuaded the trial court to impose a more favorable sentence.

¶17 The postconviction court rejected these claims. It found that the trial court had properly exercised its discretion in determining that dismissal was not warranted under the speedy trial statute. The postconviction court also found that there was no prejudicial effect in sentencing the cases together because the trial court is obligated to consider all information available regarding a defendant's conduct and behavior when imposing a sentence. Furthermore, the postconviction court observed that there is no basis in law to request separate sentencing hearings in this matter and, as such, any motion by trial counsel would have been denied. The postconviction court also noted that a PSI report is not a requirement, and even if one had been ordered, "[g]iven the various factors the [trial] court considered in its sentencing decision, there is no reasonable probability that additional information about [McBride's] family background would have made a difference" in the sentence that was imposed.

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¶18 Additionally, McBride requested an additional 105 days of sentence credit in his postconviction motion. This request was also denied after the postconviction court pointed out that McBride's calculations included time he was in custody on the unrelated...