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Denial of claims for ineffective assistance of counsel, violation of ex post facto clause, and resentencing affirmed

State v. David L. Johnson, 2015AP2605-CR, 4/4/17, District 1 (not recommended for publication); case activity (including briefs)

A jury found Johnson guilty of aggravated battery and false imprisonment but acquitted him of sexual assault and strangulation. The court imposed 2 consecutive 6-year sentences.  Johnson appealed and argued that the postconviction court erred in denying his claim for ineffective assistance of trial counsel without a hearing, imposing a DNA surcharge in violation of the ex post facto clause, and in denying resentencing. 

Hearing on IAC claim. When reviewing a decision to deny  an ineffective assistance of counsel claim without a hearing, the court of appeals decides whether the the motion alleged facts that, if proven, would entitle the defendant to relief on his claim. State v. Balliette, 2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334. Here, Johnson faulted trial counsel in part for not calling a defense witness called “John,” whose existence would have been proven had counsel obtain certain phone records. The court of appeals affirmed the denial of this claim without a hearing because:

¶21 . . . We do not know who John is or what he would have testified to at trial. There is no affidavit from John or other evidence that John even exists. Johnson’s contention that John’s testimony would have bolstered his defense is pure speculation. Johnson was not entitled to a Machner hearing based on his speculative assertions. See State v. Erickson, 227 Wis. 2d 758, 773, 596 N.W.2d 749 (1999) (“It is not enough for a defendant to merely show that the error ‘had some conceivable effect on the outcome’ of the trial…. Rather, the defendant must demonstrate … there is a reasonable probability … that the result of his trial would have been different.”) (quoted source and internal citation omitted).

DNA surcharge. Johnson also challenged the imposition of 2 DNA surcharges based on ex post facto principles. The postconviction court vacated one of them. The court of appeals upheld the other:

¶26 We agree that pursuant to Radaj, the imposition of two DNA surcharges constituted an unconstitutional ex post facto violation. Radaj explained that in such cases, the DNA surcharge can still be imposed if the sentencing court applies the prior statute, WIS. STAT. § 973.046(1g) (2011–12), and State v. Cherry, 2008 WI App 80, ¶5, 312 Wis. 2d 203, 752 N.W.2d 393. See Radaj, 363 Wis. 2d 633, ¶38. This application requires the sentencing court to exercise its discretion to determine whether to apply the surcharge. Id. Here, the sentencing court cited multiple reasons for imposing the surcharge beyond the fact that it was mandatory, including deterrence and rehabilitation, stating Johnson “needs … lots of it.” We conclude that the sentencing court properly exercised its discretion.

¶27 The parties also debate the applicability of State v. Scruggs, 2015 WI App 88, 365 Wis. 2d 568, 872 N.W.2d 146, aff’d, 2017 WI 15, ___ Wis. 2d ___, ____ N.W.2d ___, which held that the imposition of a single DNA surcharge for certain crimes committed before the effective date of WIS. STAT. § 973.046(1r) does not violate ex post facto principles. Scruggs, 365 Wis. 2d 568, ¶19. The Wisconsin Supreme Court recently upheld our decision. See State v. Scruggs, 2017 WI 15, ___ Wis. 2d ___, ____ N.W.2d ___. Because only one DNA surcharge is at issue in this appeal, we conclude that neither Radaj nor Scruggs provides a basis to overturn the postconviction order leaving in place a single DNA surcharge.

Resentencing. Johnson requested resentencing on the grounds that his PSI contained multiple inaccuracies. The court of appeals rejected this claim too because Johnson failed to prove that the sentencing court relied on any of those inaccuracies. Indeed the sentencing court explicitly stated that it was not relying on the PSI.  Op. ¶31.

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