State v. Toles, 03-2370.
| Decision Date | 23 September 2004 |
| Docket Number | No. 03-2370.,03-2370. |
| Citation | 276 Wis.2d 864,688 NW 2d 783,2004 WI App 205 |
| Parties | State of Wisconsin, Plaintiff-Respondent, v. William Ray Toles, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Before Deininger, P.J., Lundsten and Higginbotham, JJ.
Williams Toles appeals an order denying his motion for postconviction relief under WIS. STAT. § 974.06 (2001-02).1 He claims that he received ineffective assistance of trial counsel, and that his failure to raise that issue on his prior appeal was attributable to ineffective assistance of appellate counsel.2 We do not agree that appellate counsel performed ineffectively, and therefore conclude that Toles is procedurally barred from challenging trial counsel's performance at this stage.
¶2 Toles was charged with armed robbery while concealing identity. He moved to suppress a statement he had given to police on several grounds, including an alleged violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). An affidavit and brief filed in support of the suppression motion asserted that, although Toles had signed a form waiving his Miranda rights, when Toles asked when a public defender would be coming to see him, one of the detectives advised him that he did not believe any attorney was coming because Toles had not yet been charged. The trial court concluded that the totality of the information provided by the police adequately informed Toles of his Miranda rights and denied the suppression motion. Toles subsequently entered a plea, subject to his right to appeal the suppression ruling under WIS. STAT. § 971.31(10).
¶3 On appeal, Toles argued not only that the detective had given him erroneous information regarding whether he could be provided an attorney before he was charged, but also that the Miranda warnings given immediately before the interrogation at issue had failed to mention that, if Toles could not afford an attorney, one would be provided for him. The State claimed that Toles had waived any objection to the sufficiency of the Miranda warnings given. Toles responded that his argument on appeal was merely an expansion of the argument he had made below. In the alternative, Toles asked this court to review the issue in the interest of justice. We deemed the issue waived and declined to exercise our discretionary reversal power.
¶4 Toles then filed a postconviction motion under WIS. STAT. § 974.06, renewing his arguments that he was given both inaccurate and incomplete information about his right to an attorney, and claiming that appellate counsel should have raised the issue of ineffective assistance of trial counsel based on trial counsel's failure to bring the omission in the Miranda warnings to the trial court's attention. The trial court denied the motion without a hearing, and Toles appeals.
¶5 Constitutional claims that could have been raised in a direct appeal or in a postconviction motion under WIS. STAT. § 974.02 cannot form the basis for a motion under WIS. STAT. § 974.06 unless the court finds there was a sufficient reason for failing to raise the claim earlier. State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). We will independently review whether claims are procedurally barred. See State v. Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).
¶6 Here, in order to avoid the procedural bar of WIS. STAT. § 974.06, Toles claimed that he was provided ineffective assistance of appellate counsel. We are not persuaded that his allegations, even if true, would establish such a claim, however. See State v. Allen, 2004 WI 106, ¶36, ___ Wis. 2d ___, 682 N.W.2d 433 ().
The test for ineffective assistance of counsel has two prongs: (1) a demonstration that counsel's performance was deficient, and (2) a demonstration that the deficient performance prejudiced the defendant. To prove deficient performance, a defendant must establish that his or her counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." The defendant must overcome a strong presumption that his or her counsel acted reasonably within professional norms. To satisfy the prejudice prong, the defendant must show that counsel's errors were serious enough to render the resulting conviction unreliable. We need not address both components of the test if the defendant fails to make a sufficient showing on one of them.
State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12 (citations omitted).
¶7 Toles' allegation of deficient performance is that appellate counsel should have raised the issue of defective Miranda warnings in the context of ineffective assistance of trial counsel, rather than attempting to raise the issue directly, or through a request for discretionary reversal. Appellate counsel is not obligated to raise all arguably meritorious issues on appeal, however. See Jones v. Barnes, 463 U.S. 745, 749-51 (1983) (). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [appellate] counsel be overcome." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted).
¶8 Here, appellate counsel did not ignore the Miranda issue, but rather made a judgment as to the best manner in which to raise it. We cannot say counsel's approach was unreasonable or outside the wide range of professional norms, or that a claim of ineffective assistance of trial counsel would have been clearly stronger than a direct attack. For one thing, if we had agreed to review the issue directly or under our discretionary reversal authority, Toles would have benefited from a more favorable standard of review. See, e.g., State v. Ellenbecker, 159 Wis. 2d 91, 94, 464 N.W.2d 427 (Ct. App. 1990) (); State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996) ().
¶9 Moreover, attempting to raise the issue directly avoided the necessity of demonstrating that...
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