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Habeas – Concurrent Sentence Doctrine

Matthew Steffes v. Thurmer, 7th Cir No. 09-3317, 11/4/11

seventh circuit decision, denying habeas relief on review of 2006AP1633-CR

The “concurrent sentence doctrine” – which “allows appellate courts to decline to review a conviction carrying a concurrent sentence when one ‘concurrent’ conviction has been found valid,” Cheeks v. Gaetz, 571 F.3d 680, 684-85 (7th Cir.2009) – doesn’t apply here in view of a separate assessment and the potential to affect parolability:

… Here, Steffes received a $95 assessment for his first degree sexual assault conviction. As far as we can tell that has not been paid, and that fact alone probably precludes application of the concurrent sentence doctrine. See id.; United States v. Spirk, 503 F.3d 619, 622 (7th Cir. 2007). In addition, Steffes is eligible for discretionary parole in January, and a vacatur of the first degree sexual assault conviction could affect the parole determination. Cf. Cheeks, 571 F.3d at 689 (applying concurrent sentence doctrine to sentence where there were no potential parole consequences). In this case, we decline the warden’s invitation to apply the concurrent sentence doctrine.

Habeas – Ineffective Assistance – Sexual Assault, Jury Instructions 

Steffes was convicted of first-degree sexual assault, § 948.02(1)(b) (1999), for an act of fellatio committed on him by A.W. (Steffes was 15 at the time, and A.W. 12; the statute has since been amended slightly and renumbered.) Steffes argues that counsel was ineffective because the instructions didn’t include language from the statutory definition of sexual assault, namely that the act must have been “either by the defendant or upon the defendant’s instruction.” The court assumes that trial counsel had no strategic basis for not objecting to this omission, but concludes that Steffes wasn’t prejudiced.

Deferential review.

If “the state court made a prejudice determination,” then AEDPA review is deferential, Malinowski  v.  Smith, 509 F.3d 328, 333 (7th Cir. 2007); if not, then review is de novo, Porter v. McCollum, 130 S. Ct. 447, 452 (2009). Here, although the warden asserts that the Wisconsin court of appeals reached only deficient performance, not prejudice, the court determines otherwise:

… The Wisconsin Court of Appeals wrote that based on Strickland’s standard for establishing ineffective assistance of counsel, it “[could] not conclude that Steffes has demonstrated that counsel’s failure to object to this instruction was prejudicial to the outcome of this case.” We read that language as a determination by the state appellate court that Steffes did not establish the requisite prejudice necessary to satisfy Strickland. That the court did not expand on its reasoning is not determinative. … AEDPA review therefore applies. …

Prejudice analysis.

The court notes that “the import of the words ‘by the defendant or upon the defendant’s instruction’ in the Wisconsin ‘sexual intercourse’ definition, and specifically their application when the act at issue is fellatio, is not entirely clear in Wisconsin law.” Does this language modify only “other intrusion” language? If so, Steffes couldn’t have suffered prejudice, because that isn’t the form the alleged assault. And, if the language broadly applies, it is perhaps limited to instances where the defendant asserts that he or she was actually the victim: State v. Lackershire, 2007 WI 74, ¶ 33, 301 Wis.2d 418, 734 N.W.2d 23State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144? In the end, it doesn’t matter:

To the extent the “by the defendant” language applies to fellatio given by a twelve-year-old and willingly received by a defendant, it must mean that the recipient cannot defend himself by arguing that the act was not “by” him. Fellatio can well be said to be “by” both involved persons, including the recipient. To conclude otherwise in this context would run counter to the very reason for the crime of sexual intercourse with a person under thirteen with which Steffes was charged: “The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.” State v. Jadowski, 680 N.W.2d 810, 817 (Wis. 2004). The statutes are premised on Wisconsin’s determination that minors under a certain age cannot consent to sexual intercourse, and to conclude otherwise would contravene that determination. See id. (“The statute [948.02(2)] is based on a policy determination by the legislature that persons under the age of sixteen are not competent to consent to sexual contact or sexual intercourse. The statute is intended to protect children. The state has a strong interest in the ethical and moral development of its children, and this state has a long tradition of honoring its obligation to protect its children from predators and from themselves.”). Under Wisconsin law, a twelve-year-old cannot consent to sexual intercourse and therefore cannot engage in sexual intercourse “voluntarily.” See State v. Kummer, 301 N.W.2d 240, 246 (Wis. 1981) (statute providing that minors under a certain age cannot consent “continues the state’s policy of penalizing sexual intercourse or sexual contact with a person under a legislatively prescribed age without regard to the consent of the victim”).

Dryly, prosaically, the habeas court consigns Steffes and his technical argument to the dustbin of history; what else is new? Not quite. Here’s the court’s remarkable coda:

We conclude that under any interpretation of “by the defendant or upon the defendant’s instruction,” Steffes was not prejudiced from the fact that the jury did not receive the language he now seeks. Therefore, he has not made out a successful ineffective assistance of counsel claim. Although we reach that conclusion, we are not unmindful of the circumstances by which Steffes became involved in the conduct that led to his charges in this case. We trust that the parole board will take them into account when it makes its parole decision.

The horrific details, recited in the opening pages of the opinion, won’t be repeated here, except to convey the court’s thinly veiled bewilderment at Steffes’ treatment:

In this habeas corpus proceeding, Steffes challenges his conviction for first degree sexual assault for having sexual intercourse with a person who had not attained the age of thirteen years. See Wis. Stat. § 948.02(1)(b) (1999).1 This charge was based on fellatio that Steffes received from A.W. when Steffes was fifteen years old and A.W. was twelve. Some might wonder about some of the charges brought against Steffes in this case as it is clear that Howard was the ringleader. Howard enlisted Steffes to serve as a prostitute in exchange for clothing and a place to live, and Howard was the one who asked the girls if they would engage in acts of prostitution for money. In the charge at issue in particular, based on the oral sex A.W. performed on Steffes, only three years separated the two. The charging decision was not ours to make, however, and it is not an issue for our consideration.

And now, something of a tangent. What if Steffes at the time had himself been the same age as A.W.; what if, in other words, both given actors are 12 at the time they engage in sexual activity but only one is charged? (Remove force or any other arguable form of coercion as a variable.) You would then have an argument that the statute has been unconstitutionally applied to the charged defendant: In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671 (cert. petition: here;  docket, 11-277: here). Cynics among you will point out that the DA will eliminate the problem simply by charging both actors – and you might well be right. But if the choice is both (or all) or none, it quite possibly will be “none.”

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