State v. Jeninga

386 Wis.2d 336

925 N.W.2d 574

2019 WI App 14

STATE of Wisconsin, Plaintiff-Respondent,

v.Simon E. JENINGA, Defendant-Appellant.^†

Appeal Nos. 2018AP826-CR

2018AP827-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: January 18, 2019

DATED AND FILED February 21, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Colleen Marion, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. O’Brien, assistant attorney general, and Brad D. Schimel, attorney general.

Before Blanchard, Kloppenburg and Fitzpatrick, JJ.

FITZPATRICK, J.

¶1 Simon Jeninga appeals a judgment of conviction and an order denying postconviction relief entered by the Walworth County Circuit Court. Jeninga was convicted of one count of second-degree sexual assault of a child and one count of possession of child pornography pursuant to his guilty pleas to those charges. Jeninga filed a postconviction motion to withdraw his plea, alleging that his trial counsel was constitutionally ineffective for not filing a motion to suppress evidence that was found on his cell phone. Following a Machner¹ hearing, the court denied Jeninga’s postconviction motion. We affirm based on our conclusion that Jeninga has not adequately supported his allegation that, absent trial counsel’s ineffective assistance, he would not have entered any plea and, instead, would have gone to trial.

BACKGROUND

¶2 The following undisputed facts are gleaned from the record. We discuss only those facts necessary to place in context Jeninga’s argument that he would not have entered any plea and, instead, would have gone to trial had the evidence from his cell phone been suppressed.²

¶3 As part of an investigation into an alleged sexual assault of a child by Jeninga, police seized Jeninga’s cell phone and obtained a search warrant to search its contents. Forensic analysis of Jeninga’s cell phone revealed evidence of child pornography.

¶4 Jeninga was charged with one count of repeated sexual assault of a child and ten counts of possession of child pornography. The State moved to join the two cases. Jeninga’s trial counsel filed an opposition to the joinder. The circuit court granted the State’s motion. Jeninga’s trial counsel did not file a motion to suppress the evidence of child pornography obtained from Jeninga’s cell phone.

¶5 Jeninga and the State negotiated a plea agreement, pursuant to which Jeninga pled guilty to an amended charge of second-degree sexual assault of a child under the age of sixteen and one count of possession of child pornography. The nine other counts of possession of child pornography were dismissed but read in to the record for sentencing purposes. The State agreed to recommended sentences for the two counts that would result in a total of ten years of initial confinement followed by ten years of extended supervision. The defense remained free to argue for any sentence. The circuit court accepted Jeninga’s pleas and followed the State’s recommendation, sentencing Jeninga to ten years of initial confinement followed by ten years of extended supervision on the second-degree sexual assault count, and a concurrent term of three years of initial confinement followed by three years of extended supervision on the child pornography count.

¶6 Jeninga filed a motion for postconviction relief contending that his trial counsel was constitutionally ineffective for failing to file a motion to suppress the evidence found on Jeninga’s phone. The postconviction motion alleged that, had trial counsel filed a motion to suppress and had the evidence been excluded, Jeninga would not have entered any plea but, instead, would have gone to trial. In the motion, Jeninga’s postconviction counsel stated that, at a Machner hearing, Jeninga "will testify" that, had a suppression motion been filed and the evidence suppressed, "he would not have entered any plea" and would have gone to trial. Jeninga did not submit an affidavit in support of his postconviction motion.

¶7 The circuit court granted Jeninga’s request for a Machner hearing, at which his trial counsel gave the following pertinent testimony:

Q: Would you agree that the joinder [of the sexual assault and child pornography cases] weakened Mr. Jeninga’s chances of success on the sexual assault charge?

A: Yes, which is why I fought the joinder motion.

Q: And did the joinder decision affect Mr. Jeninga’s decision on whether to go to trial or to take pleas?

A: I believe it did.

Q: And did it affect your advice as to that issue?

A: Well, it certainly changed my advice, yes.

Q: And how -- in what way did it change your advice?

A: I believe that on the sexual assault case, he had a very strong case for trial. I believe that the State was going to have issues trying to show intent and not his conduct that he claimed he engaged in was of a sexual nature. So I believe there was going to be significant issues there.

I had also reviewed the child interview that was conducted at the [child advocacy center], and I believe that there were -- that that testimony as well as my potential cross of that child victim would have been enough to discredit that child as well. So I believe that he had a very strong case for trial should that case have been tried separately.

But once the Court ruled that joinder was appropriate with the child pornography case and the images that the Court was going to allow to be published to the jury, I believe that that changed that case dramatically.

(Emphasis added.) Jeninga did not testify at the Machner hearing.

¶8 The deadline for the circuit court to decide Jeninga’s postconviction motion passed without a decision or a request for an extension by either party. Accordingly, Jeninga’s postconviction motion was denied by operation of law pursuant to WIS. STAT. RULE 809.30(2)(i) (2017-18).³

¶9 Jeninga appeals.

DISCUSSION

¶10 On appeal, Jeninga argues that he is entitled to withdraw his pleas because trial counsel rendered ineffective assistance by failing to file a motion to suppress the evidence of child pornography found on his phone and that, if such a motion had been successful, he would not have entered a plea to any charge.⁴ As we explain below, we conclude that Jeninga has failed to establish a reasonable probability that he was prejudiced by the failure of trial counsel to move to suppress evidence because he did not present objective factual assertions about his subjective decision to enter into a plea agreement, including any effects that successful evidence suppression might have had on his decision to enter into the agreement.

I. Plea Withdrawal, Ineffective Assistance, and Standards of Review.

¶11 "To withdraw a guilty plea after sentencing, a defendant must show by clear and convincing evidence that a refusal to allow withdrawal of the plea would result in manifest injustice...." State v. Dillard , 2014 WI 123, ¶¶36, 83, 358 Wis.2d 543, 859 N.W.2d 44. A defendant can establish manifest injustice by proving that he or she received ineffective assistance of counsel. Id. , ¶84. To demonstrate that there was constitutionally ineffective assistance, a defendant has the burden to prove both: (1) that counsel’s performance was deficient; and (2) that the deficiency was prejudicial. Id. , ¶85 ; Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If it is determined that there was an insufficient showing on one of those two prongs, a court need not examine the other. Strickland , 466 U.S. at 697, 104 S.Ct. 2052. We resolve this appeal based on the prejudice prong.

¶12 To prove prejudice, a defendant must establish "that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Dillard , 358 Wis.2d 543, ¶95, 859 N.W.2d 44 (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). In the context of plea withdrawal, a defendant must establish a reasonable probability that he or she would not have pled and would have gone to trial but for counsel’s ineffective performance. Id. , ¶96.

¶13 An ineffective assistance of counsel claim presents a question of constitutional fact. Id. , ¶86. We uphold the circuit court’s findings of fact unless those are clearly erroneous.⁵ Id. We review de novo whether those facts establish constitutionally deficient performance and whether the deficiency led to prejudice. Id. ; see also State v. Thiel , 2003 WI 111, ¶24, 264 Wis.2d 571, 665 N.W.2d 305. Further, we determine independently whether, under the totality of the circumstances, there is a reasonable probability that the defendant would not have pled and, instead, would have gone to trial but for counsel’s ineffective performance. See Dillard , 358 Wis.2d 543, ¶99, 859 N.W.2d 44.

II. Objective Factual Assertions Are Required.

¶14 Our supreme court has held that, in order to obtain an evidentiary hearing on a motion to withdraw a plea because of ineffective assistance of counsel, a defendant must make more than a conclusory allegation that he or she would not have pled but would have gone to trial. See id. ; see also State v. Bentley , 201 Wis.2d 303, 313, 548 N.W.2d 50 (1996). Rather, that allegation "must be supported by objective factual assertions ." Bentley , 201 Wis.2d at 313, 548 N.W.2d 50 (emphasis added) (citing State v. Saunders , 196 Wis.2d 45, 51, 538 N.W.2d 546 (Ct. App. 1995) (explaining that a defendant alleging ineffective assistance must make "factual-objective" assertions rather than "opinion-subjective" assertions)). The court in Saunders also noted:

The issue is not whether specific factual assertions or general factual assertions may suffice. Rather, the issue is whether Saunders has alleged information which is "factual-objective" as opposed to "opinion-subjective." ... "Factual objectivity refers to facts in the sense of what is rea

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