State v. Shallcross

• Court: Wisconsin Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: State v. Shallcross, 345 Wis.2d 61, 823 N.W.2d 840, 2012 WI App 132 (Wis. App. 2012)
• Decision Date: 23 October 2012
• Docket Number: No. 2011AP2432–CR.,2011AP2432–CR.
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Scott R. SHALLCROSS, Defendant–Appellant.

345 Wis.2d 61

823 N.W.2d 840

2012 WI App 132

STATE of Wisconsin, Plaintiff–Respondent,

v.Scott R. SHALLCROSS, Defendant–Appellant.

No. 2011AP2432–CR.

Court of Appeals of Wisconsin.

Oct. 23, 2012.

OPINION TEXT STARTS HEREAppeal from a judgment and an order of the circuit court for Milwaukee County: Kevin E. Martens, Judge. Affirmed.

Before FINE, KESSLER and BRENNAN, JJ.¶ 1PER CURIAM.

Scott R. Shallcross appeals from a judgment of conviction entered upon his guilty pleas to two counts of homicide by intoxicated use of a motor vehicle. He also appeals from an order denying his motion for postconviction relief. Shallcross claims that he is entitled to withdraw his guilty pleas because his trial counsel was ineffective. We conclude that the circuit court properly denied his claims without a hearing, and we affirm.

BACKGROUND

¶ 2 According to the criminal complaint, Shallcross was driving a Honda Civic at speeds of eighty to one hundred miles per hour on a city street early in the morning of November 27, 2009, when he struck a pickup truck and killed its occupants, Jeremy Neuenfeldt and Thomas Ballman. Police found Shallcross and a companion, Daniel Gorectke, alive in the Honda but seriously injured, and the two survivors were taken to the hospital. A blood test revealed that Shallcross had a blood alcohol concentration of .158 percent within three hours of the collision. The police questioned Shallcross and Gorectke while the two men were hospitalized. Both men said that Shallcross was driving the Honda at the time of the collision and that he crawled into the backseat of the car afterwards.

¶ 3 The State charged Shallcross with five crimes, and he retained defense counsel. Incident to a plea bargain, he pled guilty to two counts of homicide by intoxicated use of a motor vehicle. The circuit court imposed two consecutive eighteen-year terms of imprisonment.

¶ 4 After sentencing, Shallcross retained new counsel and filed a postconviction motion to withdraw his guilty pleas on the ground that his trial counsel was ineffective in numerous ways. In support of his claims, he alleged that his trial counsel failed to take various investigative steps, including hiring experts and seeking recorded witness interviews. He further alleged that toxicological analysis showed that Neuenfeldt had controlled substances in his blood at the time of the collision, and Shallcross complained that his trial counsel therefore erred by not obtaining toxicology reports regarding Neuenfeldt and Ballman until after Shallcross entered his guilty pleas. Additionally, Shallcross complained that his trial counsel did not seek suppression of his inculpatory statements. The circuit court denied the claims without a hearing, and this appeal followed.

DISCUSSION

¶ 5 Shallcross seeks plea withdrawal. Because he first sought that relief after sentencing, he must establish by clear and convincing evidence that plea withdrawal is necessary to correct a manifest injustice. SeeState v. Brown 2006 WI 100, ¶ 18, 293 Wis.2d 594, 716 N.W.2d 906. “Ineffective assistance of counsel can constitute a ‘manifest injustice.’ ” State v. Berggren 2009 WI App 82, ¶ 10, 320 Wis.2d 209, 769 N.W.2d 110 (citation omitted).

¶ 6 A defendant who claims that trial counsel was ineffective must prove both that trial counsel's performance was deficient and that the deficiency prejudiced the defense. See Strickland v. Washington 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether counsel's performance was deficient and whether the deficiency was prejudicial are questions of law that we review de novo.State v. Johnson 153 Wis.2d 121, 128, 449 N.W.2d 845 (1990). If a defendant fails to satisfy one component of the analysis, a reviewing court need not address the other. Strickland 466 U.S. at 697.

¶ 7 To demonstrate deficient performance, the defendant must show that counsel's actions or omissions “fell below an objective standard of reasonableness.” See i d. at 688. To demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” I d. at 694. In the context of a guilty plea, a defendant must demonstrate prejudice by showing that, but for trial counsel's errors, the defendant would not have pled guilty but would have insisted on a trial. State v. Bentley 201 Wis.2d 303, 312, 548 N.W.2d 50 (1996).

¶ 8 When a defendant pursues postconviction relief based on trial counsel's alleged ineffectiveness, the defendant must preserve trial counsel's testimony in a postconviction hearing. State v. Curtis 218 Wis.2d 550, 554–55, 582 N.W.2d 409 (Ct.App.1998). Nonetheless, a defendant is not automatically entitled to a hearing upon filing a postconviction motion that alleges ineffective assistance of counsel. A circuit court must grant a hearing only if the motion contains allegations of material fact that, if true, would entitle the defendant to relief. State v. Allen 2004 WI 106, ¶ 9, 274 Wis.2d 568, 682 N.W.2d 433. This also presents a question of law for our independent review. Id. If, however, the petitioner does not allege sufficient material facts that, if true, entitle him or her to relief, if the allegations are merely conclusory, or if the record conclusively shows that the petitioner is not entitled to relief, the circuit court has discretion to deny a postconviction motion without a hearing. Id. We review a circuit court's discretionary decisions with deference. Id.

¶ 9 We begin our review of Shallcross's substantive complaints by considering the claim that trial counsel failed to conduct an adequate investigation. Shallcross contends that his trial counsel was ineffective because counsel did not: (1) retain an expert in accident reconstruction; (2) ensure that a private investigator interviewed a citizen witness whose statement to police is reflected in the discovery; or (3) seek recorded interviews with Gorectke or other witnesses. We are not persuaded.

¶ 10 “[A] defendant who alleges a failure to investigate on the part of his or her counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the case.” State v. Leighton 2000 WI App 156, ¶ 38, 237 Wis.2d 709, 616 N.W.2d 126. Shallcross's postconviction motion did not reveal the information that an expert in accident reconstruction, a private investigator's efforts, or recorded witness interviews would have disclosed, nor did the motion reveal why the information would have led Shallcross to plead differently. Because he did not offer specific material facts showing why and how the missing steps would have affected his decision-making in this case, his allegations of failure to investigate are insufficient to require a hearing on his claim that trial counsel was ineffective.

¶ 11 Next, Shallcross alleges that his trial counsel was ineffective by not obtaining toxicology reports regarding the victims until after he entered his guilty pleas. His postconviction motion shows, however, that his trial counsel sent him a copy of the toxicology reports two months before the sentencing hearing, yet he neither moved to withdraw his guilty pleas before sentencing nor told the circuit court at sentencing that he no longer wished to proceed in light of the reports. Because Shallcross continued with sentencing after his trial counsel gave him documents that he did not have at the time of his pleas, he cannot seek plea withdrawal on the ground that he lacked the documents when he entered his pleas. See State v. Damaske 212 Wis.2d 169, 192–93, 567 N.W.2d 905 (Ct.App.1997) (defendant who learned before sentencing that circuit court would consider statements from alleged victims at sentencing could not withdraw his pleas after sentencing on the basis that the circuit court considered those statements). “ ‘The situation is not so much waiver of claimed error, rather it is an abandonment of right to object by persisting in a plea strategy after the basis for the claim of error is known to defendant.’ ” Id. at 193, 567 N.W.2d 905 (citation omitted).

¶ 12 Moreover, to show prejudice, Shallcross must allege material facts demonstrating why the toxicology reports were exculpatory or would have been relevant to his decision-making. See Allen 274 Wis.2d 568, ¶ 33, 682 N.W.2d 433. To satisfy this burden, Shallcross emphasizes that the reports show Neuenfeldt had controlled substances in his blood, and Shallcross argues: “assuming that [Neuenfeldt] was driving ... and that he turned left across traffic with an obstructed view ... it would be a matter of fact for a jury to decide whether or not Neuenfeldt's actions were to blame for this accident.” ¹ This argument fails to offer material facts that connect the toxicology reports with either Shallcross's decision to plead guilty to homicide by intoxicated use of a motor vehicle or with a viable defense to the charges.

¶ 13 To obtain a conviction for homicide by intoxicated use of a motor vehicle, the State must prove, inter alia, that the defendant's intoxicated operation of a vehicle caused the death of the victim. SeeWis. Stat. § 940.09(1)

(2009–10).² Pursuant to Wis. Stat. § 940.09(2), a defendant has a defense to the charge upon proving “ ‘by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant.’ ” State v. Lohmeier 205 Wis.2d 183, 195, 556 N.W.2d 90 (1996) (citation omitted). Thus, a victim's conduct can be the basis of a statutory defense if, “because of [that] conduct, an accident would have been unavoidable even if the defendant had been driving with due care and had not been under the influence.” Id.

¶ 14 Shallcross points to nothing in the toxicology reports showing that an accident “would have been unavoidable” had Shallcross been sober and driving with due care within the speed...