State v. Provost

392 Wis.2d 262

944 N.W.2d 23

2020 WI App 21

STATE of Wisconsin, Plaintiff-Respondent,

v.Ronald Eugene PROVOST, Defendant-Appellant^† .

Appeal Nos. 2018AP1268-CR

2018AP1269-CR

Court of Appeals of Wisconsin.

Submitted on Briefs: October 8, 2019

Opinion Filed: April 14, 2020

On behalf of the defendant-appellant, the cause was submitted on the briefs of Christopher M. Zachar of Zachar Law Office, LLC, La Crosse.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sander, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 In these consolidated appeals, Ronald Provost appeals a judgment, entered upon a jury's verdict, convicting him of causing a child to view sexual activity and a judgment, entered upon his guilty pleas, convicting him of seventh-offense operating a motor vehicle while intoxicated (OWI) and felony bail jumping.¹ He also appeals the orders denying his motions for postconviction relief.

¶2 With respect to his conviction for causing a child to view sexual activity, Provost contends that he was denied his constitutional right to a speedy trial under the traditional four-factor test established in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), as applied and interpreted by our case law. In the alternative, he argues that because two of the attorneys appointed to represent him failed to adhere to the minimum performance guidelines set by the Office of the Wisconsin State Public Defender (SPD), we should adopt and apply the "systemic breakdown" exception established by Vermont v. Brillon , 556 U.S. 81, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009), to conclude that his speedy-trial right was violated.²

¶3 As to his conviction for seventh-offense OWI, Provost contends that his trial counsel provided him with ineffective assistance. Specifically, he faults his counsel for failing to collaterally attack two of his prior OWI-related criminal convictions in Minnesota.

¶4 We conclude that: (1) considering the four Barker factors in light of the totality of the circumstances, there was no violation of Provost's right to a speedy trial; (2) even assuming that two of the attorneys assigned to represent Provost failed to adhere to the minimum standards set by the SPD (an assumption which, for reasons explained below, is generous), no "systemic breakdown" occurred within the meaning of Brillon ; and (3) Provost has failed to demonstrate that he was prejudiced by his counsel's failure to collaterally attack the challenged prior OWI convictions. Consequently, we affirm.

BACKGROUND

¶5 On August 14, 2014, the State filed a criminal complaint against Provost in Douglas County case No. 2014CF300. After the State failed to timely arraign Provost, however, the charges against Provost were dismissed without prejudice. The State then filed a criminal complaint against Provost in Douglas County case No. 2014CF390. The charges against Provost in case No. 2014CF390—one count each of causing a child to view sexual activity and child enticement—were the same as those previously brought in case No. 2014CF300 and were based upon the same conduct.³

¶6 More specifically, the State alleged in the criminal complaint that Provost answered an online advertisement purporting to be from a "younger" female "looking 4 someone to have fun with" by asking if the advertisement's poster would "like to have lots of fun, like to be eaten out?" The poster, who was actually an investigator from the City of Superior Police Department, responded that "I am only 15." A text conversation ensued, during which Provost sent the purported fifteen-year-old female a picture of his erect penis and arranged to meet at a hotel for a sexual encounter. When Provost arrived at the hotel, police placed him under arrest.

¶7 Provost was arraigned in case No. 2014CF390 on December 15, 2014. The circuit court, at the request of Provost's appointed counsel, Fredric Anderson, did not set a trial date at the arraignment. Instead, the court scheduled a status conference for February 2, 2015, to accommodate Anderson's request to allow for further "discussions" with the State.

¶8 The case proceeded through a series of status conferences over the next twenty months.⁴ These conferences were scheduled at the request of attorney Anderson for various reasons, including twice due to the filing of new felony charges against Provost in separate, unrelated cases. As relevant to this appeal, in one of those cases, Douglas County case No. 2015CF143, the State charged Provost with seventh-offense OWI and two counts of felony bail jumping.

¶9 On June 6, 2016, the circuit court scheduled a trial for all of the pending cases against Provost for September 29, 2016, with a mandatory pretrial conference on September 16. Provost, however, failed to appear at the pretrial conference. Consequently, the court issued a bench warrant and removed the trial date from the court's calendar. Provost was taken into custody one month later, on October 25, and the court imposed a $25,000 cash bail as a condition for his release.⁵ The court also rescheduled Provost's trial date for January 26, 2017.

¶10 On November 15, 2016—more than two years after the charges against him were filed—Provost filed a demand for a speedy trial. Six days later, attorney Anderson moved to withdraw as counsel. Anderson asserted two reasons for his request: (1) he had "developed a conflict of interest"; and (2) his relationship with Provost had "deteriorated." The court granted Anderson's motion on the same day it was filed.

¶11 The next day, the SPD appointed attorney Christopher Gramstrup to represent Provost in all the cases currently pending against him in Douglas County, including case Nos. 2014CF390 and 2015CF143. At a pretrial hearing on January 9, 2017, Gramstrup informed the circuit court that a plea agreement had been reached in case No. 2015CF143, although no such agreement had been reached in case No. 2014CF390.⁶ On January 19, 2017, in accordance with the plea agreement, Provost entered guilty pleas to seventh-offense OWI and one count of felony bail jumping in case No. 2015CF143. The court revoked Provost's bond at the conclusion of this plea hearing.

¶12 At the outset of the February 15, 2017 sentencing hearing in case No. 2015CF143, the State informed the circuit court the parties had reached a plea agreement to "resolve all the files." Consequently, the court decided to take Provost's plea in case No. 2014CF390 before proceeding to sentencing in case No. 2015CF143. During the plea colloquy, however, Provost stated he "was having trouble with this case, Your Honor, because I didn't have nothing to do with any kid or anything, but yet I'm told I'm going to be crazy if I don't take this plea." Based on this statement, the court concluded that Provost's plea was not "freely and voluntarily made," and it declined to accept it.

¶13 Due to the unresolved status of case No. 2014CF390, the circuit court adjourned the February 15, 2017 hearing without sentencing Provost in case No. 2015CF143. Additionally, the court asked the parties if they had any objections to rescheduling the trial in case No. 2014CF390, which was still on the court's schedule for the next day. Attorney Gramstrup responded: "No. I've talked to my client about that. I don't believe there's an objection." While the parties discussed potential dates for rescheduling the trial, Gramstrup informed the court that Provost had just told him "that he did file a Speedy [trial demand]. However, when I got Mr. Anderson's file, there was no Speedy Trial Demand in there." After the circuit court clerk confirmed that such a demand had been filed, the parties agreed to set the trial for April 25, 2017.

¶14 The following day, at Provost's request, attorney Gramstrup moved to withdraw. The circuit court granted this motion five days later, on February 21, 2017. The next day, the SPD appointed attorney Lance Nelsen to represent Provost.

¶15 Just over one month later, attorney Nelsen moved to withdraw. As with attorney Gramstrup, Nelsen did so at Provost's request. Provost explained at a March 31, 2017 hearing on this motion that he felt that "both [of my] last two attorneys never asked me anything about my case, and they both said, there's nothing I can do for you. And told me I was crazy if I don't take the State's offer. And I don't feel they were properly representing me." Over the State's objection that allowing Nelsen to withdraw would further delay bringing the case to trial, the circuit court granted Nelsen's motion. The court informed Provost, however, that "at some point we are not going to just keep continuing this case and appointing you new counsel."

¶16 The SPD subsequently appointed attorney Frederick Bourg to represent Provost on April 4, 2017. Bourg then moved the circuit court to release Provost from custody due to an alleged violation of Provost's right to a speedy trial. The court denied this motion, concluding that the delays in bringing Provost to trial had "been to accommodate Mr. Provost in his continual request for different counsel."

¶17 The trial in case No. 2014CF390 ultimately took place on June 29, 2017, with attorney Bourg representing Provost. The jury convicted Provost of causing a child to view sexual activity, but it acquitted him of child enticement.

¶18 Following sentencing in case Nos. 2014CF390 and 2015CF143, Provost filed separate postconviction motions in each case. In case No. 2014CF390, he moved the circuit court to vacate his conviction and dismiss the charges against him based on the alleged violation of his constitutional right to a speedy trial. In case No. 2015CF143, he sought relief based on attorney Gramstrup's alleged ineffective assistance—namely, Gramstrup's failure to collaterally attack two of Provost's prior OWI-related convictions, from Minnesota in 1992 and 2000, on the ground that Provost did not receive the...