State v. Turner

1

State of Wisconsin, Plaintiff-Respondent, v. Lawrence J. Turner, Defendant-Appellant.

No. 2022AP469

Court of Appeals of Wisconsin, District III

November 5, 2024

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)5.

APPEAL from an order of the circuit court for Brown County: No 2009CF695 TAMMY JO HOCK, Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

PER CURIAM.

¶1 Lawrence Turner appeals from a circuit court order denying his WIS. STAT. § 974.06 (2021-22)^[1] motion for postconviction relief. On appeal, he argues that the court erred by denying both his judicial substitution motion and his postconviction motion. In the alternative, Turner contends that he is entitled to a new trial in the interest of justice.^[2] For the reasons that follow, we affirm the court's order.

BACKGROUND

¶2 In 2010, Turner was convicted, following a bench trial, of one count of first-degree sexual assault of a child under the age of thirteen and two counts of misdemeanor battery as acts of domestic abuse. The circuit court found Turner guilty based on evidence that Turner sexually assaulted Ruth and physically abused Sadie, Ruth's mother.^[3] Turner was found not guilty on two counts: strangulation and suffocation and felony intimidation of a victim, each as an act of domestic abuse.

¶3 In 2011, Turner filed a postconviction motion in the circuit court pursuant to WIS. STAT. § 974.02, in which his postconviction counsel argued three issues. In a written order, the court denied the motion. Turner appealed, and, in a per curiam opinion, this court affirmed the judgment of conviction and order denying postconviction relief. See State v. Turner, No. 2011AP746-CR, unpublished slip op ¶1 (WI App Jan. 31, 2012). Our state supreme court denied Turner's petition for review of that decision.

¶4 In December 2020, Turner filed a WIS. STAT. § 974.06 motion for postconviction relief, asserting three issues each different from the issues raised in his first postconviction motion. First, Turner argued that his 2011 postconviction counsel were ineffective by failing to challenge the validity of Turner's jury waiver.^[4] Second, Turner asserted that newly discovered evidence-in the form of Sadie's posttrial statements threatening the father of some of her children that she would "coach" those children into making false claims of sexual impropriety against him-warranted a new trial. Third, Turner argued that he was entitled to a new trial in the interest of justice.

¶5 In February 2021, a new judge was assigned to the case.^[5]Approximately three months later, and citing WIS. STAT. § 971.20, Turner filed a motion for substitution of judge. The circuit court denied that motion after finding it was untimely.

¶6 The circuit court granted a Machner^[6] hearing on Turner's ineffective assistance of postconviction counsel claim, at which both of his 2011 postconviction counsel testified. The court denied the motion following the hearing concluding that the jury waiver claim was not "clearly stronger" than the claims pursued immediately following Turner's conviction. In addition, the court found that Turner's postconviction counsel chose not to pursue the jury waiver claim as part of a "legitimate strategy" of not subjecting Turner to a potentially more severe sentence upon remand from a successful appeal. The court denied Turner's remaining claims without a hearing. Turner now appeals.

DISCUSSION

I. Substitution

¶7 Turner argues that the circuit court erred by denying his motion for judicial substitution made under WIS. STAT. § 971.20. This issue requires us to interpret and apply § 971.20 and WIS. STAT. § 801.58, which presents a question of law that we review de novo using well-settled legal principles. See State v. Gramza, 2020 WI.App. 81, ¶15, 395 Wis.2d 215, 952 N.W.2d 836; State v. Jones, 2021 WI.App. 15, ¶19, 396 Wis.2d 602, 957 N.W.2d 551.

¶8 In civil actions, judicial substitution requests are governed by WIS. STAT. § 801.58, which dictates that a substitution request must be made within ten days "of receipt of notice of assignment" "[i]f a new judge is assigned." Sec. 801.58(1). Conversely, WIS. STAT. § 971.20 governs a defendant's right to substitution in "any criminal action." Sec. 971.20(2). An "action" under that section "means all proceedings before a court from the filing of a complaint to final disposition at the trial level." Sec. 971.20(1).

¶9 Proceedings under WIS. STAT. § 974.06 are "civil in nature," despite the fact that a motion under that section "is a part of the original criminal action." See § 974.06(2), (6); State ex rel Krieger v. Borgen, 2004 WI.App. 163, ¶11, 276 Wis.2d 96, 687 N.W.2d 79. Moreover, WIS. STAT. § 971.20 cannot apply to § 974.06 proceedings because an "action" under § 971.20 ends at the final disposition of the criminal case at the trial level. See § 971.20(1).

¶10 Therefore, Turner's judicial substitution request was governed by WIS. STAT. § 801.58. Judge Hock was appointed to the case in February 2021. Turner did not file his substitution request until May 2021. Accordingly, the circuit court properly denied his substitution motion as untimely.

II. Ineffective assistance of counsel

¶11 Next, Turner argues that the circuit court erred by concluding that his 2011 postconviction counsel were not constitutionally ineffective when they failed to challenge the validity of Turner's waiver of his right to a jury. In the 2011 postconviction motion, Turner's postconviction counsel raised three grounds for a new trial: (1) the circuit court erroneously admitted an audiovisual recording containing statements by Ruth; (2) the court erroneously denied Turner's request for an in camera review of Ruth's confidential records; and (3) Turner's trial counsel was constitutionally ineffective by failing to request a mistrial-or have Ruth's testimony stricken-after someone was alleged to have coached Ruth from the gallery during her trial testimony.

¶12 To succeed on a claim for ineffective assistance of postconviction counsel based upon counsel's failure to raise an available issue in an earlier motion or on direct appeal, a petitioner must show that his or her counsel performed deficiently and that the deficient performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Romero-Georgana, 2014 WI 83, ¶36, 360 Wis.2d 522, 849 N.W.2d 668. As part of the deficiency prong, the petitioner must show that "a particular nonfrivolous issue" is "clearly stronger than" the issues postconviction counsel did present. Romero-Georgana, 360 Wis.2d 522, ¶¶45-46 (citation omitted).

¶13 Whether postconviction counsel was ineffective presents a mixed question of fact and law. State v. Maday, 2017 WI 28, ¶25, 374 Wis.2d 164, 892 N.W.2d 611. We will accept a circuit court's findings of fact unless they are clearly erroneous. Id. '"[T]he circumstances of the case and the counsel's conduct and strategy' are considered findings of fact." Id. (alteration in original; citation omitted). We "will not second-guess a reasonable trial strategy, [unless] it was based on an irrational trial tactic or based upon caprice rather than upon judgment." State v. Breitzman, 2017 WI 100, ¶75, 378 Wis.2d 431, 904 N.W.2d 93 (alteration in original; citation omitted). "[W]here a lower court determines that counsel had a reasonable trial strategy, the strategy 'is virtually unassailable in an ineffective assistance of counsel analysis.'" Id. (citation omitted). "A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence." State v. Anderson, 2019 WI 97, ¶20, 389 Wis.2d 106, 935 N.W.2d 285. Whether counsel's performance was ineffective is a question of law we review do novo. Maday, 31A Wis.2d 164, ¶25.

¶14 At the Machner hearing, both of Turner's 2011 postconviction counsel testified. Neither attorney had a specific recollection of Turner's case by the time they testified at the 2021 hearing. However, both attorneys testified that, in general, one of the key considerations when appealing is to choose issues that will put a defendant in the best position for a new trial upon a successful outcome. Turner's first postconviction attorney explained this strategy, stating:

But if you do take someone back to trial and you don't change the outcome of the trial, that's not going to help them very much, and sometimes it can open them up to being in a situation where, for a variety of reasons, they could potentially face a more serious sentence, either because of things they've done in the meantime or additional information that comes into play. So if you get them a new trial, you want to have them in a position where they are going to have a better chance.

So, I mean, if the option is, okay, just get them a new trial and hope versus get them a new trial in a better position, you are always going to go with the better argument[, to] get them in a new trial in a better position.

¶15 In addition, Turner's first 2011 postconviction attorney stated that she always met with clients in person prior to filing a postconviction motion. During these meetings, she and the client would discuss what the client's goals were with the appeal, what issues were available to raise, what she thought would be the "smart path," and, ultimately, which issues, if any, the client wanted to raise. The second postconviction attorney was able to confirm through firm records that the first attorney had actually met in person with Turner for over an hour.

¶16 With respect to the strategy in this case,...