State v. Reed

984 N.W.2d 741 (Table)

2023 WI App 1

STATE of Wisconsin, Plaintiff-Respondent,

v.Scott Lee REED, Defendant-Appellant.

Appeal No. 2020AP1897-CR

Court of Appeals of Wisconsin.

November 8, 2022

PER CURIAM.

¶1 Scott Reed appeals from a judgment convicting him of conspiracy to commit first-degree intentional homicide and from orders denying him postconviction relief. Reed argues that he should be allowed to withdraw his no-contest plea due to the constitutionally ineffective assistance of his trial counsel. Reed also contends that the circuit court erroneously rejected some of his ineffective assistance of counsel claims prior to the Machner¹ hearing. In the alternative, Reed argues that he must be resentenced due to the court relying on inaccurate or improper information at sentencing, or he should have his sentence modified based on a new factor. We reject Reed's arguments and affirm.

BACKGROUND

¶2 In late 2017, Reed was living with two friends, Troy Evert and Rachel Kirschner, who were dating one another. At the time, Reed considered Kirschner to be his "best friend," and he would refer to her as his "sister," even though they had no familial relationship. One evening, in October 2017, Kirschner became intoxicated and told a recent ex-boyfriend, Joey,² that she and her boyfriend Evert had set fire to a person's cabin after that person called Kirschner a "whore." Upon learning about the fire, Joey insisted that Kirschner breakup with Evert and threatened to tell law enforcement about the fire. As time passed, Joey became "more aggressive" with his demands, and Kirschner grew frustrated. At one point, Kirschner threatened to kill herself.

¶3 After Joey learned about the fire, Kirschner and Evert openly discussed how "somebody needs to take care of [Joey]," which Reed heard and understood meant "to kill" Joey. Reed eventually became involved in a plan to do exactly that. In mid-December 2017, Evert—with Reed present and while using Reed's cellphone—contacted a man in Illinois to "take care of [Joey]" and offered to pay him $100. Evert and the man discussed the possibility of getting a gun from Amazon or Walmart and how Reed would take the man to Joey's home to "stake him out." After the call, Reed took $100 that Evert had given him and wired the money to the man. However, the man later stated he could not "do it" and would return the money.

¶4 Around the same time, Reed sent several messages to friends about the plot against Joey. Reed told one friend, "I'm going to kill [Joey]." He told another friend that "I might be going to persion [sic] for life" and that "I have a green light on someone[;] he needs to be gone by Monday." Reed told a third friend, "I have a green light[;] i need a pi[e]ce."

¶5 After the Illinois man refused to get involved, Kirschner told Reed one evening that "you got to go do it. I can't take it no more." Reed acquiesced to Kirschner's request and said he would "take care of it." Reed grabbed a steak knife and then drove to Joey's home.

¶6 Upon arriving at Joey's home, Reed rang the doorbell, and Joey opened the door. The two men had a brief exchange of words, with Reed stating: "You mother fucker. Stop messing with my sister." According to Joey, Reed immediately pulled a three-inch kitchen knife from his hip and attempted to stab Joey in his midsection. Joey blocked the knife with his right arm and was stabbed in his upper forearm. Reed subsequently removed the knife from Joey's arm and raised the knife up in the air, holding the knife in a downward, thrusting position. Joey grabbed Reed's arm, which prevented Reed from stabbing Joey again. A brief struggle ensued, but it was quickly broken up when Joey's grandfather came out of the home and yelled at Reed. Joey and Reed released each other, and Reed took off running. Although Joey survived the stabbing, he suffered permanent nerve damage in his arm.

¶7 Shortly thereafter, Reed was arrested, and he gave a statement to law enforcement about the incident. Reed admitted to stabbing Joey, but he claimed that he did so only because Joey had started choking him. Later in the interview, however, Reed admitted that he went to Joey's home to stab Joey "but probably just in the arm." Reed claimed that he "just wanted to hurt [Joey,] but he didn't want to kill him." The State initially charged Reed with one count of first-degree recklessly endangering safety with use of a dangerous weapon. After further investigation, and upon obtaining additional information, the State filed a new criminal complaint charging Reed with one count of conspiracy to commit first-degree intentional homicide. The first charge was subsequently dismissed.

¶8 Reed pled no contest to the conspiracy charge, and the circuit court ordered a presentence investigation report (PSI), which was filed before the sentencing hearing. The PSI detailed, among other things, Reed's criminal history, and it recommended that the court sentence Reed to thirteen years’ initial confinement followed by six years’ extended supervision.

¶9 At the sentencing hearing, the parties jointly recommended a sentence of ten years’ initial confinement followed by ten years’ extended supervision. The circuit court, however, rejected the parties’ recommendation. The court expressed dismay over how Reed became involved with this plot and attacked Joey "for no discernable reason." The court also discussed Reed's criminal history, noting that Reed had thirteen criminal convictions as an adult and four adjudications as a juvenile. Of those offenses, the court observed that thirteen offenses involved violence. The court also prominently noted the PSI author's comment that he did not disagree with Joey's belief that Reed should receive the "[m]aximum sentence possible." Ultimately, the court imposed a forty-five-year sentence, consisting of twenty-five years’ initial confinement followed by twenty years’ extended supervision.

¶10 Reed subsequently filed a postconviction motion, requesting plea withdrawal or, alternatively, resentencing or sentence modification. Reed alleged that he received ineffective assistance of counsel because his trial counsel: (1) failed to inform him of potential trial defenses, such as seeking an instruction on self-defense or for a lesser-included offense; (2) failed to seek plea withdrawal prior to sentencing despite Reed's insistence that he did not intend to kill Joey; (3) failed to investigate Reed's "criminal history" that was detailed in the PSI; and (4) failed to request an adjournment at sentencing to clarify the PSI author's sentence recommendation. Reed further alleged that the circuit court relied on inaccurate and improper information at sentencing and that his cooperation after sentencing constituted a new factor.

¶11 The circuit court denied Reed's motion without an evidentiary hearing, but it allowed him to amend his motion to allege that his trial counsel "strong[-]armed him into a plea." Thereafter, Reed filed an amended motion, alleging that he received ineffective assistance of counsel because his trial counsel "overcame Reed's will not to plead" by insisting that Reed accept the plea agreement and because trial counsel failed to adequately consider Reed's request to withdraw his plea before sentencing. The court held a Machner hearing on Reed's amended motion, at which Reed and his trial counsel testified. The court later denied Reed's amended motion in a written decision.

¶12 Reed appeals. Additional facts will be provided as necessary below.

DISCUSSION

I. Plea withdrawal on the basis of ineffective assistance of counsel

¶13 A defendant may withdraw a guilty or no-contest plea after sentencing if the defendant shows by clear and convincing evidence that a refusal to allow plea withdrawal would result in manifest injustice. State v. Jeninga , 2019 WI App 14, ¶11, 386 Wis. 2d 336, 925 N.W.2d 574. One way to establish manifest injustice is to show that the defendant received ineffective assistance of counsel. State v. Dillard , 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶14 To show ineffective assistance of counsel, the defendant must prove: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced the defense. State v. Sholar , 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89. A court need not address both components of this inquiry if the defendant does not make a sufficient showing on one. State v. Smith , 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶15 Under the deficient performance prong, a defendant must demonstrate that his or her trial counsel's performance fell below "an objective standard of reasonableness." State v. Savage , 2020 WI 93, ¶28, 395 Wis. 2d 1, 951 N.W.2d 838 (citation omitted). "Courts afford great deference to trial counsel's conduct, presuming that it ‘falls within the wide range of reasonable professional assistance.’ " Id. (citation omitted). "Counsel need not be perfect, indeed not even very good, to be constitutionally adequate." State v. Thiel , 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305 (citation omitted).

¶16 To establish prejudice, "a defendant must show that there is a reasonable probability that, but for counsel's professional errors, the result of the proceeding would have been different." Savage , 395 Wis. 2d 1, ¶32 (quoting Strickland v. Washington , 466 U.S. 668, 694 (1984) ). In the plea withdrawal context, there must be "a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." State v. Cooper , 2019 WI 73, ¶32, 387 Wis. 2d 439, 929 N.W.2d 192 (citation omitted). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland , 466 U.S. at 694. However, "a defendant need not prove the outcome would ‘more likely than not’ be different in order to establish prejudice in ineffective assistance cases." Sholar , 381 Wis. 2d 560, ¶44 (citing Strickland , 466 U.S. at...