State v. Van Camp, 2012AP2637.
| Decision Date | 28 June 2013 |
| Docket Number | No. 2012AP2637.,2012AP2637. |
| Citation | 835 N.W.2d 292,349 Wis.2d 528,2013 WI App 94 |
| Parties | STATE of Wisconsin, Plaintiff–Appellant, v. Dennis C. VAN CAMP, Defendant–Appellant. |
| Court | Wisconsin Court of Appeals |
OPINION TEXT STARTS HEREAppeal from an order of the circuit court for Brown County: Donald R. Zuidmulder, Judge. Affirmed.
Before HOOVER, P.J., MANGERSON and STARK, JJ.¶ 1PER CURIAM.
Dennis Van Camp, pro se, appeals an order denying his Wis. Stat. § 974.061 motion for postconviction relief. He argues his postconviction/appellate counsel was ineffective for failing to raise various claims on direct appeal. We reject Van Camp's arguments and affirm.
¶ 2 The State charged Van Camp with: possession with intent to deliver more than forty grams of cocaine, as party to a crime, second or subsequent offense; possession of cocaine, second or subsequent offense; possession of an electric weapon; and possession of drug paraphernalia.2 At trial, Juan Salinas testified that, in July 2008, he was a confidential informant working with officer Michael Wanta of the Brown County Drug Task Force. According to Salinas, he had a conversation with Van Camp about purchasing a quarter kilogram of cocaine from Salinas. Salinas told Wanta about the conversation, and, at Wanta's instruction, Salinas agreed to meet Van Camp at a Walgreens parking lot in Green Bay on July 11 to complete the transaction.
¶ 3 On July 11, Wanta searched Salinas, provided Salinas with a bag containing approximately 252 grams of cocaine, and outfitted Salinas with an audio recording device. Salinas then drove alone in his car to the Walgreens and waited about ten minutes for Van Camp to arrive. When Van Camp arrived in a red Durango, Salinas exited his car and got into the Durango's passenger seat. Salinas testified he gave Van Camp the cocaine in exchange for $5,500 in cash. After Salinas exited the Durango, police immediately arrested Van Camp and recovered the bag containing the cocaine. Police also found an additional five bags of cocaine on Van Camp's person and an electronic stun gun and digital scale in Van Camp's vehicle.
¶ 4 Van Camp testified in his defense. He admitted knowing Salinas and knowing that Salinas might be a source for cocaine. Van Camp testified Salinas called him repeatedly and offered to sell him cocaine, but he said he was not interested. Van Camp also admitted meeting Salinas on July 11, but stated he did not know exactly why they were meeting. During the meeting, Salinas handed him a bag, which Van Camp opened and saw what he believed was cocaine. Van Camp weighed the cocaine on a scale he had in the vehicle. He believed it was “short,” so he only gave Salinas $5,500 instead of $6,500. However, Van Camp testified the cocaine admitted into evidence was not the same cocaine he purchased from Salinas. He explained the cocaine he purchased from Salinas was a solid brick with “no shake.”
¶ 5 Van Camp's theories of defense focused mainly on the cocaine charges. In regard to the charge of possession with intent to deliver more than forty grams of cocaine, Van Camp asserted the affirmative defense of entrapment. During closing argument, Van Camp argued the State induced him to purchase the cocaine through Salinas' repeated phone calls.3 Van Camp's attorney also emphasized the State needed to prove beyond a reasonable doubt that the substance Van Camp purchased and possessed was cocaine. Counsel argued the State had not met its burden because it had not offered a believable explanation for the discrepancies in the weights of the different packages of cocaine.4 Counsel argued the weight discrepancies could not be explained by evaporation, by residue left inside previous containers, or by typographical error. The jury, however, found Van Camp guilty of all counts.
¶ 6 On direct appeal, Van Camp's appellate counsel argued the circuit court erred by denying Van Camp's request for a jury instruction on chain of custody. See State v. Van Camp, No.2011AP388–CR, unpublished slip op. (WI App Dec. 28, 2011). Counsel asserted a chain of custody instruction was necessary because police provided Salinas with 252 grams of cocaine, but the cocaine seized from Van Camp weighed only 249.09 grams, and because the weights of the five smaller bags of cocaine found on Van Camp's person following his arrest differed from the weights of the five bags of cocaine introduced into evidence at trial. Id., ¶ 1. We concluded the circuit court properly exercised its discretion by denying the request for the chain of custody instruction because the other instructions fully and fairly informed the jury of the applicable law. Id., ¶ 12. Moreover, we observed that, despite refusing to give the chain of custody instruction to the jury, the circuit court allowed Van Camp to argue the chain of custody issue to the jury, which counsel did. Id., ¶ 14.
¶ 7 Van Camp subsequently filed a Wis. Stat. § 974.06 postconviction motion arguing his postconviction/appellate counsel was ineffective for failing to raise certain claims in regard to his entrapment defense and for failing to address the admissibility of the cocaine. The circuit court denied Van Camp's motion without a hearing.
¶ 8 Van Camp renews his argument that he is entitled to relief under Wis. Stat. § 974.06 because his postconviction/appellate counsel rendered ineffective assistance.6See State v. Balliette, 2011 WI 79, ¶¶ 18, 36–37, 336 Wis.2d 358, 805 N.W.2d 334 (); see also State ex rel. Rothering v. McCaughtry, 205 Wis.2d 675, 682, 556 N.W.2d 136 (Ct.App.1996) ().
¶ 9 To prove postconviction/appellate counsel was ineffective, Van Camp must prove counsel's performance was deficient and the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Balliette, 336 Wis.2d 358, ¶ 28, 805 N.W.2d 334 (). To demonstrate deficient performance, the defendant must show specific acts or omissions of the lawyer that are “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. A lawyer is not ineffective for failing to make claims that would have been denied. See State v. Berggren, 2009 WI App 82, ¶ 21, 320 Wis.2d 209, 228, 769 N.W.2d 110. Further, “ ‘[p]ostconviction counsel is entitled to exercise reasonable professional judgment in winnowing out even arguable issues in favor of others perceived to be stronger.’ ” State ex rel. Ford v. Holm, 2004 WI App 22, ¶ 4, 269 Wis.2d 810, 676 N.W.2d 500 (citation omitted).
¶ 10 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.” Strickland, 466 U.S. at 694. If a defendant fails to satisfy one prong of the analysis, we need not address the other. Id. at 697.
¶ 11 Van Camp first argues his postconviction/appellate counsel was ineffective for failing to raise certain claims in regard to his entrapment defense. Entrapment is an affirmative defense available to a defendant when law enforcement induces the defendant to commit an offense the defendant was not otherwise disposed to commit. State v. Bjerkaas, 163 Wis.2d 949, 954, 472 N.W.2d 615 (Ct.App.1991). Stated another way, a defendant is entrapped when the criminal design originated with the government agent, and the defendant would not have committed the crime except for the urging of authorities. State v. Schuman, 226 Wis.2d 398, 403, 595 N.W.2d 86 (Ct.App.1999).
¶ 12 Establishing the defense is a two-step process. Bjerkaas, 163 Wis.2d at 954, 472 N.W.2d 615. First, the defendant must show by the great weight of credible evidence that he or she was induced to commit the crime. State v. Saternus, 127 Wis.2d 460, 472, 381 N.W.2d 290 (1986). If the defendant meets that burden of persuasion, the burden falls on the State to prove beyond a reasonable doubt that the defendant was not entrapped. Id. at 474, 381 N.W.2d 290. The State meets this burden by proving either: the inducement was not excessive or the defendant was predisposed to commit the crime before being induced. State v. Hilleshiem, 172 Wis.2d 1, 9, 492 N.W.2d 381 (Ct.App.1992).
¶ 13 Van Camp argues his postconviction/appellate counsel was ineffective for failing to argue he was entrapped as a matter of law. Van Camp asserts that, because the State engaged in its own crime by selling him cocaine, the officers' conduct shows he was entrapped as a matter of law. We understand Van Camp's argument to be that he wishes us to apply the “objective” test of entrapment. The objective entrapment test focuses only on the conduct police used to induce the crime and does not consider whether the defendant was predisposed. See Saternus, 127 Wis.2d at 470–71, 381 N.W.2d 290. However, our supreme court has rejected the “objective” test and “chose[n] to follow the subjective approach,” which focuses instead on “whether the police conduct affected or changed the particular defendant's state of mind.” Id. at 470, 381 N.W.2d 290. Because Wisconsin law does not use the objective test for entrapment, postconviction/appellate counsel was not ineffective for failing to raise that claim. See State v. Johnson, 2007 WI 32, ¶ 14 n. 4, 299 Wis.2d 675, 729 N.W.2d 182;see also Hilleshiem, 172 Wis.2d at 9, 492 N.W.2d 381 ().
¶ 14 Van...
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Dennis Van Camp v. Symdon
...that Van Camp was entrapped as a matter of law because Van Camp's proposed objective standard is simply not Wisconsin's law. State v. Van Camp, 2013 WI App 94, ¶ 13, 349 Wis. 2d 528, 835 N.W.2d 292. The court stated that Wisconsin does not use an objective approach, but rather uses a subjec......