This decision addresses: 1) the propriety of successive postconviction motions; 2) a claim that trial counsel was ineffective for failing to object to testimony vouching for the credibility of another witness and to improper character evidence; and 3) the novel issue of the sentencing judge’s use of a written rather than oral explanation of its sentencing rationale under § 973.017(10m)(b).
Successive postconviction motion
Like the court of appeals, we’ll start with whether McReynold’s appeal is procedurally barred under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), because it concerns issues raised in a successive postconviction motion that could have been raised in the initial postconviction motion. (¶16). The court of appeals holds that under the “unique” facts of this case, the appeal isn’t barred. (¶18).
The “unique” facts are that McReynolds’s first appointed postconviction attorney filed a no merit report, which the court of appeals rejected after identifying an issue of arguable merit. Counsel then filed a postconviction motion raising the issue identified by the court of appeals. The circuit court denied the postconviction motion in an oral ruling and counsel filed a notice of appeal (which was premature, as a written order hadn’t yet been filed). (¶¶12-13).
Counsel thereafter filed a motion to withdraw, which was ultimately granted, though while it was pending the court of appeals had granted the SPD’s motion to extend the Rule 809.30(2)(h) deadline to file a notice of appeal or a postconviction motion. The court of appeals construed this motion as including voluntary dismissal of the appeal from the denial of the first postconviction motion. (¶¶13 n.8, 19). McReynolds’s new postconviction attorney filed a second postconviction motion raising the issues in this appeal. (¶¶14, 19). Given this procedural history, and in particular the court’s orders extending the time to file a postconviction motion, the second motion was part of McReynolds’s single direct appeal as of right and was not barred under Escalona. (¶¶18-20).
Vouching and character evidence
McReynolds was charged with selling drugs to an informant, and he argues that trial counsel should have objected to the investigating officer’s four favorable comments about the informant’s credibility, in which the officer affirmed that he believed the informant’s description of the sales were truthful and accurate. (¶¶5-10, 25-26). The court of appeals holds the officer’s statements weren’t vouching:
¶33 The first, second, and fourth instances of alleged vouching were elicited because law enforcement officers were unable to directly observe the controlled drug buys. The State offered [Investigator] Ranallo’s testimony to establish whether the informant’s oral statements given to law enforcement immediately after the drug buys were consistent with Ranallo’s observations, including those from the videos and audio recordings. Ranallo’s opinions about the truthfulness of the informant’s statements were relevant to explain both the reason law enforcement relied upon the informant’s information—given their inability to observe the exchanges—and why they chose not to pursue any further investigation. Ranallo did not testify that the informant told the truth at trial. Rather, similar to the testimony provided in [State v.] Smith[, 170 Wis. 2d 701, 492 N.W.2d 40 (Ct. App. 1992)] and [State v.] Snider[, 2003 WI App 172, 266 Wis. 2d 830, 668 N.W.2d 784], Ranallo testified he thought the information provided by the informant at the time of the controlled buys was truthful, as it was supported by what he observed and it helped explain why he conducted the investigation as he did.
¶34 The third statement referenced the altercation between McReynolds and the informant and whether Ranallo was concerned about the informant’s credibility “at that point.” Ranallo responded that he “was not given any information to lead [him] to believe that [the informant] was not being truthful.” He stated that the informant “showed me the injuries …, so I was able to corroborate that portion of it.” The inquiry and response related to whether Ranallo could have further confidence in what the informant told him about the altercation between McReynolds and himself and whether the altercation would provide the informant with a motive to participate in or lie about the second controlled buy. Ranallo’s testimony regarding the informant’s truthfulness as to the altercation was offered to explain why Ranallo continued in his investigation of McReynolds with the assistance of the informant and why the second drug buy took place despite the altercation.
McReynolds also argues trial counsel should have objected to two references to his association with a gang. Assuming trial counsel should have objected, the failure to do so was not prejudicial because the references were “quick” and “minor” in the context of the trial. (¶¶36-43).
Written sentencing rationale under § 973.017(10m)(b)
At sentencing, the judge invoked § 973.017(10m)(b), which allows the court to “state the reasons for its sentencing decision in writing and include the written statement in the record,” and told McReynolds she was doing it:
…as a courtesy to you, and I mean this sincerely, as a courtesy to you. I don’t want to go through the long and ponderous explanation [here] that I’m going to make in—in writing because I just think that you may consider it demeaning and insulting. I don’t want you to feel demeaned. I don’t want you to feel insulted. I don’t want you feel lectured to.
The court also referred to prior dates when he refused to come to court and to the first day of trial, when he refused to come but was eventually “forced to show up in the wheelchair” and was then disruptive in court and had to be removed. Despite his ultimate cooperation, “I think that it is not in your interest for me to go through the long analysis that I’m going to do in writing.” (¶11).
McReynolds argues § 973.017(10m)(b) is unconstitutional as applied to him because it violated his due process right to be present at sentencing, an intrinsic part of which is the court’s explanation of its sentencing decision, and he did not waive that right.
The court of appeals disagrees, holding the right to be present when sentence is imposed doesn’t extend to the pronouncement of the reasons for the sentence because they are “distinct events….” (¶60). While the court must give reasons for the sentence, it doesn’t follow that § 973.017(10m)(b) violates the constitution by separating the act of imposing sentence from the explanation of the reasons for the sentence, for it “in no way dispenses with the requirement that the circuit court explain its reasons for its sentencing decision on the record. It merely provides an alternative method” when, in its discretion, it determines it isn’t in the defendant’s interest to state the reasons in the defendant’s presence. (¶63). Nor has McReynolds shown why his presence during the explanation of the sentence would contribute to the fundamental fairness of the sentencing. (¶65). Thus, the sentencing court’s use of the written explanation did not violate his right to be present at sentencing.