Egerson moved to withdraw his pleas, alleging his trial lawyer was ineffective for failing to challenge the domestic abuse repeater enhancers appended to the charges Egerson faced. According to Egerson, those enhancers never applied, so he was overcharged and led to believe his sentencing exposure was greater than it was. The court of appeals holds trial counsel wasn’t deficient because the complaints supported charging them and, in any event, Egerson hasn’t shown prejudice.
Egerson was charged with 16 felony and misdemeanor charges in five different cases for having repeated telephone contact with A.E., his estranged wife, in violation of a domestic abuse restraining order, a TRO, and various bail and sentencing no-contact orders. Fifteen of the charges included the domestic abuse repeater enhancer under § 939.621(2). Egerson ultimately pleaded guilty to six of the counts, all without the enhancer, and the 10 remaining charges were dismissed and read in. (¶¶6-28).
Egerson argues his trial lawyer should have moved to dismiss the enhancer allegations because there are insufficient facts in the complaints to support applying the enhancer. He focuses on one of the requirements of a § 939.621(2) enhancer: that the defendant committed “an act of domestic abuse, as defined in § 968.075(1)(a).” The only part of that definition that could apply here is § 968.075(1)(a)4., which covers “[a] physical act that may cause the other person reasonably to fear imminent engagement in” intentional infliction of physical pain, physical injury, or illness; intentional impairment of physical condition; or certain acts of sexual assault. (¶35).
The court rejects Egerson’s claim:
¶43 We conclude that the facts in the complaints and record here show, in context, that A.E. “may” have reasonably feared imminent harm from Egerson. First, each complaint alleges that Egerson had two prior domestic abuse convictions from 2012. While the complaints do not recite the details of those domestic abuse acts, they do inform that he committed acts of domestic abuse that resulted in conviction. Regardless of what the acts entailed, the fact is that Egerson had previously been convicted of domestic abuse and that he made repeated phone calls to A.E. to get her to drop the charges in this case. That is sufficient to show that A.E. “may” have reasonably feared more domestic abuse. This is especially true given Egerson’s flagrant, repeated, and immediate violations of the many no-contact orders detailed in the complaints. In context, these two things alone—his two past domestic abuse convictions and his complete disregard for court orders—support the repeater enhancers here. Again, the pleading requirements are minimal and these allegations are sufficient to meet the standard of “minimal adequacy” for pleading. See [State v.] Olson, 75 Wis. 2d [575,] 581[, 205 N.W.2d 12 (1977)].
In addition, facts alleged in one of the complaints show Egerson acted violently toward A.E. recently, which supports the reasonableness of her fear of him. (¶44). And the record contains facts in addition to those in the complaints that support this conclusion, which would have rendered futile a motion to challenge the enhancers based on any deficiency in the complaints because the complaints could have been amended, or charges reissued, to cite those facts. (¶¶45-46). Thus, trial counsel wasn’t deficient for not challenging the charging of the enhancers.
Egerson also claimed that § 968.075(1)(a)4. wasn’t satisfied because the phone calls to A.E. weren’t “a physical act,” an argument the court rejects as “plainly absurd.” In addition, the court has held a text message is a physical act, and there’s no discernible difference between that and a phone call. State v. Bandy, 2014AP1055-CR & 2014AP1056-CR, unpublished slip op. (WI App Oct. 28, 2014). (¶¶37-38).
He further argued trial counsel was deficient for not challenging a bail jumping charge and a charge of intentionally contacting A.E., but the record doesn’t support those arguments. (¶¶55-56).
Even if trial counsel was deficient in any of the ways Egerson alleges, his prejudice argument fails because: (1) he does not claim, and the record does not show, that he would have gone to trial but for trial counsel’s purported ineffectiveness, State v. Krawczyk, 2003 WI App 6, ¶¶28-29, 259 Wis. 2d 843, 657 N.W.2d 77; (2) even if he had succeeded in getting the domestic abuse enhancers dismissed, the state had other charges and evidence and could have amended or reissued the enhancers or issued more charges; and, (3) even if the enhancers were dismissed, he cannot show he would have received a shorter sentence than the one he bargained for. (¶¶50-54, 57).