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Ineffective Assistance of Counsel; Multiplicity; Postconviction Discovery; Trial Judge Adopting State’s Brief in Toto

State v. Kelvin L. Crenshaw, 2010AP1960-CR, District 1, 8/2/11

court of appeals decision (not recommended for publication); for Crenshaw: Joseph E. Redding; case activity

Counsel wasn’t ineffective with respect to: failure to argue a theory of defense unsupported by the evidence; failure to introduce medical records asserted to show police bias in conducting the investigation; failure to object to the concededly erroneous inclusion of “party to a crime” liability in the verdict form; and, failure to object to prosecutorial reference, in closing argument, to “a typical defense attorney trick.”

Convictions for both possession of a short-barreled rifle and use-of-a-dangerous-weapon penalty enhancer weren’t multiplicitous

¶38      Possession of a short-barreled rifle required the State to prove that:  (1) Crenshaw possessed a rifle; and (2) the rifle was short-barreled.  See Wis JI—Criminal 1342; see also Wis. Stat. § 941.28.  The use-of-a-dangerous-weapon penalty enhancer required the State to prove that Crenshaw committed the crime of first-degree reckless injury while using, threatening to use, or possessing to facilitate the crime, a dangerous weapon.  See Wis JI—Criminal 990; seealso Wis. Stat. § 939.63.  The elements required to prove each charge are not the same.  See Tappa, 127 Wis. 2d at 162.  Possession of a short-barreled rifle punishes mere possession, while the use-of-a-dangerous-weapon penalty enhancer punishes use of a dangerous weapon in furtherance of a crime.  See State v. Peete, 185 Wis. 2d 4, 18, 517 N.W.2d 149 (1994) (concluding that “the language ‘while possessing’ in [Wis. Stat. §] 939.63 requires the [S]tate to prove a nexus between the weapon and the predicate offense”).  Therefore, we affirm the trial court.

Denial of postconviction discovery, on ground of insufficient showing that disclosure would lead to different outcome, sustained. Procedural aspect aspect explained:

¶42      We also reject the State’s argument that we do not have jurisdiction over this issue.  The State submits that because Crenshaw filed his postconviction discovery motion with the trial court pursuant to Wis. Stat. § 974.07, and because that statute permits appeals taken from orders issued pursuant to § 974.07 to be taken as from a final judgment, see § 974.07(13), Crenshaw was required to file his notice of appeal within twenty days of the entry of the order, see Wis. Stat. § 809.30(2)(j).  Because Crenshaw did not file his notice of appeal within twenty days, the State argues we have no jurisdiction over Crenshaw’s appeal of the order.  See Wis. Stat. § 809.10(1) (appeal is initiated by filing a notice of appeal with clerk of the circuit court).  We disagree.

¶43      Wisconsin Stat. § 974.07(13) states that “[a]n appeal may be taken from an order entered under this section as from a final judgment.”  We have previously held that “[t]he word ‘may’ in a statute is generally construed as permissive unless a different construction is required by the statute to carry out the clear intent of the legislature.” Heritage Farms, Inc. v. Markel Ins. Co., 2011 WI App 12, ¶9, 331 Wis. 2d 64, 793 N.W.2d 896.  In other words, § 974.07(13) did not require Crenshaw to appeal from the trial court’s order.

¶44      Moreover, it made little sense for Crenshaw to appeal from the trial court’s order denying his motion for postconviction discovery because the time for filing postconviction motions had not expired and Crenshaw subsequently filed a second postconviction motion.   Had he hastily appealed from the first order, his appeal of the second would have been barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994).

¶45      Finally, Crenshaw argues that the trial court’s order denying his postconviction motion without a Machner hearing  was clearly erroneous because it adopted the State’s brief in toto, thereby failing to exercise any independent rationale for its decision.  …

¶46      In support of his argument that the trial court erred by adopting the State’s brief in toto, Crenshaw relies on Trieschmann v. Trieschmann, 178 Wis. 2d 538, 504 N.W.2d 433 (Ct. App. 1993), in which we rejected the trial court’s temporary maintenance order in a divorce action.  See id. at 540.  We concluded that by adopting the wife’s memorandum in its entirety “the court failed to articulate the factors upon which it based its decision as required” because the wife’s memorandum was “devoid of any explanation or reasoning as to why the court accepted [the wife’s] views regarding the disputed facts and law over [the husband’s] views.”  Id. at 542.  That is not the situation here.

¶47      Here, the trial court adopted the State’s brief in its entirety, as did the court in Trieschmann, but here, the State’s brief properly set forth the facts it considered, the law it utilized, and, unlike the wife’s brief in Trieschmann, logically reasoned to its conclusions.  Consequently, in adopting the State’s brief as its reasoning, the trial court properly exercised its discretion.

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