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Records that support claims defense counsel made at sentencing not enough to merit resentencing or sentence modification

State v. Anthony Herman Williams, 2014AP447-CR & 2014AP448-CR, District 1, 9/30/14 (not recommended for publication); case activity: 2014AP447-CR; 2014AP448-CR

Cell phone records that corroborate a claim Williams’s trial lawyer made at sentencing regarding contact between Williams and the victims don’t show that the sentencing court relied on inaccurate information because the records do little to corroborate the contact or support Williams’s version of events.

Williams was charged with sexual assault and kidnapping of S.A. and J.G. in two separate cases that shared a very similar modus operandi. He ultimately pled to sexually assaulting J.G. and kidnapping S.A. At sentencing his lawyer argued that Williams had met S.A. and J.G. in an online chat room and arranged to meet them and have sex, but that Williams admitted he forced them to do more than what they had expected. Trial counsel referred to phone records that may have verified the pre-arrangement, but he didn’t present these records. (¶¶2-6). The circuit court, however, agreed with the state’s characterization that these were serial, violent rapes. (¶7).

Williams moved for resentencing under State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, arguing the trial court relied on the inaccurate information that Williams was a stranger rapist, and he submitting the phone records to corroborate the claim that Williams had contact with the victims before the incidents. (¶10). The court of appeals agrees with the circuit court that the records don’t show a reliance on inaccurate information:

¶13      At the sentencing, there is no reference to Williams as a stranger, either by the State or the circuit court. Further, there is nothing in the sentencing-hearing transcript to show that the circuit court relied on Williams’s status as a stranger or non-stranger. These crimes were heinous regardless of whether Williams was a stranger or an online-chat-room hook-up gone bad. The circuit court relied on the seriousness of the crimes and the need for punishment and rehabilitation. Those same factors would have applied even if Williams’s victims knew him.

¶14      Further, as the circuit court pointed out in its order denying Williams’s postconviction motion, the existence of the phone calls does not prove that Williams knew the victims, but rather that he only called their cell phone numbers repeatedly on the day of the assaults—and that he did so in such a way as to block his cell number from showing up. In fact, calling someone thirty-three times in a two-hour window sounds more like a stalker than a friend. Moreover, contact by cell phone does not establish that the victims would have known what Williams looked like even though they may have talked to him online or over the phone. According to both victims, Williams snuck up on them and held a knife to their bodies. Williams did not prove the circuit court relied on inaccurate information when it imposed sentence.

For the same reason, trial counsel wasn’t ineffective for failing to submit the records to the sentencing court (¶¶15-17) and the records don’t establish a new factor justifying modification (¶18).

That Williams “block[ed] his cell phone number from showing up” is a fact the court of appeals “finds” all on its own as a matter of judicial notice, § 902.01, saying the phone records he submitted show “Williams dialed ‘[*]67’ before every single one of these calls” and that “[t]his code is the universal command to deactivate caller ID. See http://cellphones.about.com/od/frequentlyaskedquestions/qt/blockcellphonenumber.htm (last visited Sept. 15, 2014).” (¶10). Apparently about.com is now a source “whose accuracy cannot reasonably be questioned,” § 902.01(2)(b).

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