State v. Wilson

• Decision Date: 16 September 2014
• Docket Number: No. 2013AP2747–CR.,2013AP2747–CR.
• Citation: 357 Wis.2d 722,855 N.W.2d 904 (Table)
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. James WILSON, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

357 Wis.2d 722

855 N.W.2d 904 (Table)

STATE of Wisconsin, Plaintiff–Respondent

v.James WILSON, Defendant–Appellant.

No. 2013AP2747–CR.

Court of Appeals of Wisconsin.

Sept. 16, 2014.

Opinion

¶ 1 PER CURIAM.

James Wilson appeals a judgment of conviction entered after a jury found him guilty of four counts of armed robbery and one count of robbery, all as a party to a crime. He also appeals an order denying postconviction relief.¹ He contends that the circuit court lost subject matter jurisdiction over this matter and erroneously exercised its sentencing discretion, and that his trial counsel gave him constitutionally ineffective assistance. We reject his contentions and affirm.

BACKGROUND

¶ 2 In March 2011, the State charged Wilson with one count of armed robbery as a party to a crime. The circuit court arraigned him on the charge the following month. After the matter had been pending for some time, the State filed an amended complaint in February 2012 and then an amended information in March 2012 charging Wilson with a total of five counts of armed robbery as a party to a crime. The State alleged that Wilson was one of a group of men who robbed five people at gunpoint during the late-night and early-morning hours of March 13–14, 2011, in Milwaukee, Wisconsin. Wilson's co-defendants each pled guilty to one count of armed robbery as a party to a crime, and each co-defendant received a seventeen-year sentence bifurcated as seven years of initial confinement and ten years of extended supervision. Wilson elected to go to trial. The jury found him guilty, as a party to a crime, of four counts of armed robbery and one count of robbery.² For the armed robbery counts, the circuit court imposed four concurrent sentences of twenty-two years of imprisonment, each bifurcated as twelve years of initial confinement and ten years of extended supervision. For the robbery count, the circuit court imposed a concurrent, evenly bifurcated ten-year term of imprisonment.

¶ 3 Wilson filed a postconviction motion, asserting that his trial counsel was ineffective in various ways and that the circuit court erroneously exercised its sentencing discretion and imposed unduly harsh sentences by requiring that he serve five more years in initial confinement than must his co-defendants. The circuit court denied the motion without a hearing, and Wilson appeals.

DISCUSSION

¶ 4 On appeal, Wilson first asserts that the circuit court lacked jurisdiction over all of the counts against him except the original charge because the State did not move for leave to file the additional four charges. Wilson did not first present this claim to the circuit court. We normally do not address issues raised for the first time on appeal. See State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis.2d 486, 611 N.W.2d 727. Here, however, Wilson challenges the circuit court's subject matter jurisdiction, an issue that cannot be waived. See State ex rel. Skinkis v. Treffert, 90 Wis.2d 528, 531–32, 280 N.W.2d 316 (1979). Accordingly, we address the issue now. See id. We reject the claim.

¶ 5 Wisconsin Stat. § 971.29(1) permits the State to amend charges without judicial approval only prior to the defendant's arraignment. State v. Conger, 2010 WI 56, ¶ 48, 325 Wis.2d 664, 797 N.W.2d 341. Nonetheless:

[t]he failure of the State to obtain the permission of the [circuit] court to file a post-arraignment amended information does not deprive the [circuit] court of subject matter jurisdiction because, once subject matter attaches with the filing of the criminal complaint, it continues until the final disposition of the case. Accordingly, while the failure to obtain the [circuit] court's permission to file an amended information is a procedural defect, this failure neither implicates a lack of subject matter jurisdiction, nor is it reversible error without a showing of prejudice on the part of the defendant.

State v. Webster, 196 Wis.2d 308, 319, 538 N.W.2d 810 (Ct.App.1995) (citation omitted). The circuit court thus did not lack subject matter jurisdiction here.

¶ 6 Additionally, we note the State's argument that the circuit court approved the filing of the amended complaint and information. The State directs our attention to a December 2011 hearing at which the State disclosed in open court that it planned to charge Wilson with three additional armed robberies, and the circuit court responded: “okay.” Further, at a hearing two months later, the State told the circuit court that earlier in the week the State had filed an amended charging document “adding an additional four counts of armed robbery. And we're here for the initial appearance on that.” The circuit court again responded “okay.” The circuit court went on to determine that the amended complaint stated probable cause to believe that Wilson had committed a felony. The State argues that these proceedings demonstrate that it had leave to file amended charging documents in this case.

¶ 7 Wilson did not file a reply brief in this matter. We conclude that he concedes the contention that the State filed the amended charging documents with leave of the circuit court. See State v. Normington, 2008 WI App 8, ¶ 44, 306 Wis.2d 727, 744 N.W.2d 867 (appellant's failure to refute a proposition constitutes a concession). We accept the concession and conclude that the circuit court approved filing amended charging documents in this case. Accordingly, those filings do not constitute a procedural defect.

¶ 8 Wilson next claims that he received ineffective assistance from his trial counsel. A familiar two-prong test governs such claims. To prevail on a claim of ineffective assistance of trial counsel, a defendant must show both that trial counsel's performance was deficient and that the deficient performance prejudiced the defense. 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). A reviewing court need not address both prongs of the analysis if the defendant makes an insufficient showing on either one. See Strickland, 466 U.S. at 697.

¶ 9 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. The motion should “allege the five ‘w's' and one ‘h’; that is, who, what, where, when, why, and how.” See id., ¶ 23. Whether the motion contains sufficient allegations of material fact to earn a hearing presents an additional question of law for our independent review. Id., ¶ 9. 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. See id. We review a circuit court's discretionary decisions with deference. Id.

¶ 10 Wilson contends that his trial counsel was ineffective for failing to object when the State filed amended charging documents. He shows no deficiency. Trial counsel had no basis for an objection because, as we have already determined, the circuit court approved the filings. See Webster, 196 Wis.2d at 319, 538 N.W.2d 810. The circuit court correctly rejected this claim without a hearing. See Allen, 274 Wis.2d 568, ¶ 9, 682 N.W.2d 433.

¶ 11 Wilson next contends that his trial counsel was ineffective for failing to seek suppression of his inculpatory custodial statement to police on the ground that he gave the statement involuntarily. A defendant's involuntary statement is inadmissible at the defendant's trial. See State v. Samuel, 2002 WI 34, ¶ 19, 252 Wis.2d 26, 643 N.W.2d 423.

¶ 12 Preliminarily, we observe that Wilson does not dispute receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).³ “ ‘[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.' ” State v. Ward, 2009 WI 60, ¶ 61, 318 Wis.2d 301, 767 N.W.2d 236 (citations omitted). Thus, to demonstrate that trial counsel was ineffective here, Wilson must demonstrate that his case is among a rare few. See State v. Berggren, 2009 WI App 82, ¶ 21, 320 Wis.2d 209, 769 N.W.2d 110 (“an attorney is not ineffective for not making a motion that would have been denied”).

¶ 13 When we assess whether a defendant voluntarily offered a custodial statement, “ ‘the essential inquiry is whether the confession was procured via coercive means or whether it was the product of improper pressures exercised by the police.’ ” Id., ¶ 30 (citation omitted). The process involves an examination of the totality of the circumstances, “balancing the characteristics of the suspect against the type of police tactics that were employed to obtain the suspect's statement.” Ward, 318 Wis.2d 301, ¶ 19, 767 N.W.2d 236. If, however, “there is no evidence of either physical or psychological coercive tactics by [law enforcement officers], the balancing test is unnecessary.” Berggren, 320 Wis.2d 209, ¶ 30, 769 N.W.2d 110. This is so because a defendant claiming that his or her statement was involuntary must show some “coercive or improper police conduct” in securing the statement. See State v. Hoppe, ...