State v. Ramczyk
| Decision Date | 05 April 2022 |
| Docket Number | 2021AP309-CR |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. Robert D. Ramczyk, Defendant-Appellant. |
| Court | Court of Appeals of Wisconsin |
This opinion will not be published.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 Milwaukee County: No. 2018CF1237 T. CHRISTOPHER DEE and DAVID A. FEISS, Judges. Affirmed.
Before Donald, 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).
¶1 Robert D. Ramczyk appeals the judgment convicting him upon a jury verdict for one count of first-degree reckless injury with use of a dangerous weapon, contrary to Wis.Stat. § 940.23(1)(a) (2019-20).[1]He also appeals the circuit court order denying his motion for postconviction relief without a hearing. Ramczyk argues his trial counsel was ineffective for failing to discuss the option of requesting a jury instruction for the lesser-included offense of second-degree reckless injury and for failing to request such instruction. We conclude that under the facts of this case that Ramczyk was not entitled to a lesser-included offense instruction for second-degree reckless injury, and therefore, trial counsel was not ineffective. Thus, we affirm.
¶2 This matter arises out of a shooting on March 10, 2018, in the parking lot of the Mitchell Park Domes in Milwaukee after several car loads of people gathered to continue a conflict that began as a fist fight the previous day at a roller skating rink in Cudahy. According to the criminal complaint Ramczyk, a passenger in the rear seat of a gray Audi A6 opened the rear driver's side door and fired four shots at the Lexus SUV behind it, one shot struck the passenger in the front seat, J.P., [2] in the face.
¶3 At trial in May 2019, C.B. testified that she is Ramczyk's cousin and she was a passenger in the Audi during the incident. One of C.B.'s friends was involved in a fist fight in the parking lot of a roller skating rink on March 9, 2018; Ramczyk was not present. The next day, Ramczyk's sister let C.B. know that the conflict between the two factions had resumed. There were messages exchanged on social media about continuing the fight at the Mitchell Park Domes later that day. C.B. read aloud parts of the Facebook Messenger group text conversation among herself, Ramczyk, his sister, and D.W., the brother of one of the fist fight participants. In one of the messages, Ramczyk attached a picture of a gun with the text, "they don't want none we got big bois round here." Additionally, in the Snapchat messages between the two factions, C.B. stated that the other side was threatening them and saying they were "scared" if they did not come to the fight.
¶4 C.B. further testified that her mother drove them in the gray Audi to the Mitchell Park Domes. C.B. sat in the front passenger seat, and Ramczyk, Ramczyk's friend, and D.W sat in the backseat, with Ramczyk seated behind the driver. She stated:
We pulled into the parking lot behind the Domes, and we pulled in front of a car, and then as we were pulling in front of the car, three other trucks came driving behind us as if they were going to smash into our car. So we tried to leave, and then they started chasing after us after we were trying to exit from the parking lot.
C.B. stated, that "after [they] were exiting … there was a shooting." She ducked down and did not see who was shooting, but she heard gunshots and figured out that the shots were coming from within the Audi. C.B. identified the Audi in a still photo of surveillance video footage that showed an arm and gun coming out of the driver's side rear door.
¶5 J.P. testified that she drove her boyfriend, [3] his brother, and his brother's friend to the Mitchell Park Domes parking lot on March 10, 2018. She was driving the 2004 black Lexus SUV until they arrived, at which point her boyfriend switched to be the driver. They planned to meet up with her boyfriend's cousin and "three other cars full of people" who arrived after they did and she believed they also knew her boyfriend's cousin. J.P. reviewed multiple surveillance videos of the Lexus, the Audi, and the other cars, including a Volkswagen Passat, racing around the parking lot.
¶6 J.P. further testified that when a gray Audi arrived, her boyfriend "raced behind them" in the parking lot which she believed was an attempt to scare the Audi's occupants. J.P. stated her boyfriend "hit the brakes really hard [in the Lexus] as soon as they hit the brakes [in the Audi], and that's when [she] got shot." The videos ended with the Audi abruptly stopping and the Lexus braking in reaction, and then the driver's side rear door opened and J.P. was shot. She heard four shots and the third one hit her in her head. J.P. was transported by ambulance to the hospital where she had surgery on her mouth during which they removed the bullet that was lodged in her upper right cheek.
¶7 Detective Jason Rydzewski of the Milwaukee Police Department testified that he saw a bullet hole in the passenger side of the front windshield of the Lexus. He found no firearms or ballistics materials in the Passat or the Lexus. He found four shell casings in the parking lot, spaced about eight to ten feet apart, which he explained meant that the shooter was moving at the time the shots were fired.
¶8 At the jury instructions conference, the parties agreed that the trial court[4] should give the substantive instruction for first-degree reckless injury, Wis JI-Criminal 1250. Ramczyk requested a self defense instruction. The State did not object and the instruction was given. Trial counsel did not request an instruction on the lesser-included offense of second-degree reckless injury.
¶9 The jury found Ramczyk guilty of first-degree reckless injury and found that he used a dangerous weapon during the offense. The trial court imposed a sentence of eighteen years, divided as twelve years of initial confinement and six years of extended supervision.
¶10 In December 2021, Ramczyk moved for postconviction relief on the ground of ineffective assistance of counsel. The circuit court denied his motion without a hearing. This appeal follows.
¶11 Ramczyk argues that trial counsel provided ineffective assistance of counsel when he did not discuss the option of requesting a lesser-included jury instruction for second-degree reckless injury with him and when counsel did not request the lesser-included instruction. Although Ramczyk contends that trial counsel was deficient both for not discussing a lesser-included offense instruction with him and for not requesting one, the premise of both arguments, as we understand them, is that he was entitled to the instruction based on the evidence. Further, Ramczyk contends that the circuit court erred when it denied his postconviction motion without ordering a Machner[5] hearing.
¶12 A defendant is not automatically entitled to an evidentiary hearing on his or her postconviction motion. State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50 (1996). The postconviction court must hold an evidentiary hearing only if the defendant alleges "sufficient material facts that, if true, would entitle the defendant to relief," which is a question of law that we review independently. State v. Allen, 2004 WI 106, ¶¶9, 14, 274 Wis.2d 568, 682 N.W.2d 433. If the motion does not set forth sufficient facts or presents only conclusory allegations, or the record establishes conclusively that the defendant is not entitled to relief, the circuit court may grant or deny a hearing at its discretion. Id., ¶9.
¶13 Because Ramczyk's postconviction claim is based on ineffective assistance of counsel, he must allege sufficient material facts to prove that claim. To prove ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the defendant was prejudiced by counsel's performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Whether trial counsel's performance was ineffective is a question of law that we review independently. State v. Balliette, 2011 WI 79, ¶19, 336 Wis.2d 358, 805 N.W.2d 334.
¶14 We follow a two-step process to determine "whether a lesser[-]included instruction should be given." State v. Muentner, 138 Wis.2d 374, 387, 406 N.W.2d 415 (1987). First, we determine as a matter of law whether the offense was a lesser included offense. Id. The parties do not dispute that second-degree reckless injury is a lesser-included offense for first-degree reckless injury. State v. Miller, 2009 WI.App. 111, ¶32, 320 Wis.2d 724, 772 N.W.2d 188 (footnote omitted).
¶15 Second, we determine whether "reasonable grounds exist in the evidence both for acquittal on the greater offense and conviction on the lesser offense." Id. ¶48. This step "involves a weighing of the evidence which would be presented to the jury." Muenter, 138 Wis.2d at 387. Therefore, the question in this case is whether, under the evidence presented at trial, there were reasonable grounds for both acquittal on the first-degree reckless injury charge and conviction on the second-degree reckless injury lesser-included offense. "When determining whether these instructions should be provided, the evidence is viewed in the light most favorable to the defendant[.]" State v. Johnson, 2021 WI 61, ¶3, 397 Wis.2d 633, 961 N.W.2d 18. Because we determine that the...
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