State v. Robert George Johnson ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 9, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP926-CR Cir. Ct. No. 2016CF88
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
ROBERT GEORGE JOHNSON,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Sawyer County: JOHN M. YACKEL, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Robert Johnson appeals a judgment, entered upon a
jury’s verdict, convicting him of one count of first-degree sexual assault of a child
No. 2021AP926-CR
under age thirteen, contrary to WIS. STAT. § 948.02(1)(e) (2021-22).1 Johnson
also appeals the order denying his motion for postconviction relief.2 Johnson
argues that he was denied his constitutional right to a speedy trial, that his trial
attorneys were constitutionally ineffective, and that his sentence is unduly harsh.
We reject Johnson’s arguments, and we affirm the judgment and order.
BACKGROUND
¶2 According to a criminal complaint, on the evening of May 7, 2016,
Johnson was an overnight guest in his cousin’s home, and, after a night of
drinking, he sexually assaulted then-six-year-old Alice3 and told her not to tell
anyone. Alice reported the assault to her parents. During a forensic interview,
Alice stated that Johnson came into her bedroom and put his finger in her vagina.
Alice further stated that Johnson “kissed” her vagina, forced her to touch his penis,
and tried to get her to bite his penis. On May 11, 2016, the State charged Johnson
with first-degree sexual assault of a child.
¶3 The State moved to admit other-acts evidence consisting of
uncharged allegations that Johnson had sexually assaulted three girls, two of
whom were related to Johnson, ranging in age from four to seven years old. After
a hearing, the circuit court granted the motion. Johnson’s counsel subsequently
1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
The Honorable Kenneth Kutz presided at trial. The Honorable John M. Yackel
imposed the sentence and decided the postconviction motion.
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use a pseudonym
instead of the victim’s name.
2
No. 2021AP926-CR
moved to withdraw from representation at Johnson’s request, and a new attorney
was appointed.
¶4 On the first day of trial, defense counsel informed the circuit court
that Johnson wanted to enter a plea of not guilty by reason of mental disease or
defect (“NGI”). When the court expressed concern over Johnson’s late request,
defense counsel explained that he had several conversations with Johnson about an
NGI plea, and although a retained expert’s opinion did not support such a plea,
Johnson nevertheless insisted on entering an NGI plea. To alleviate the court’s
concerns about the impact of this late-stage request, defense counsel proposed that
Johnson would waive his right to a jury trial at the second phase—the
responsibility phase—of the bifurcated procedure.4 The court took the proposal
“under advisement,” stating that it would revisit the issue if the jury found Johnson
guilty of the sexual assault charge.
¶5 At trial, the jury watched Alice’s forensic interview, in which she
described the various ways that Johnson had assaulted her. A forensic scientist in
the DNA analysis unit of the State Crime Laboratory testified that there were two
4
When, as here, an NGI plea is joined with a not guilty plea, a bifurcated criminal trial
results, consisting of two phases: the guilt phase and the responsibility phase. See State v.
Magett, 2014 WI 67, ¶33, 355 Wis. 2d 617, 850 N.W.2d 42. If the jury finds the defendant guilty
in the first phase, the circuit court withholds entry of judgment and the matter proceeds to the
second phase. See WIS. STAT. § 971.165(1)(d). Our supreme court has further explained:
In the second phase, the jury considers whether the defendant
had a mental disease or defect at the time of the crime and
whether, “as a result of mental disease or defect the person
lacked substantial capacity either to appreciate the wrongfulness
of his or her conduct or conform his or her conduct to the
requirements of law.”
Magett, 355 Wis. 2d 617, ¶33 (quoting WIS. STAT. § 971.15(1)).
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No. 2021AP926-CR
sources of DNA found in Alice’s underwear, and the mixture was 10,000 times
more likely to be a mixture of Johnson’s saliva DNA and Alice’s DNA than a
mixture of Alice’s DNA with that of another male. The jury also heard testimony
from two of Johnson’s nieces, both of whom testified that Johnson sexually
assaulted them in their respective homes—one when she was six or seven years
old, and the other when she was five years old. During closing arguments, the
State highlighted the other-acts evidence to demonstrate that Johnson had a plan to
assault Alice and that the assault was not accidental but, rather, intentional. The
jury found Johnson guilty of the crime charged.
¶6 The circuit court then returned to Johnson’s request to enter an NGI
plea. The court recounted that it had reservations about the timing of the request,
noting the fact that a prior evaluation did not appear to support such a plea. The
court nevertheless ordered an additional expert evaluation of Johnson, noting that
it did not want to unnecessarily prolong this matter and it wanted to bring closure
to the victim if, in fact, the evaluation did not ultimately support an NGI plea.
¶7 After evaluating Johnson, a licensed psychologist opined, to a
reasonable degree of professional certainty, that she could not support an NGI plea
on Johnson’s behalf. The psychologist concluded: “There is no evidence that,
other than because of his alcohol consumption, Mr. Johnson was unable to
appreciate the wrongfulness of his conduct and that he was unable to conform his
conduct to the requirements of the law at the time of the commission of the alleged
offense.” The matter therefore proceeded to sentencing, and the circuit court
imposed the maximum sentence, consisting of forty years of initial confinement
followed by twenty years of extended supervision.
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No. 2021AP926-CR
¶8 Johnson filed a postconviction motion raising three claims. First, he
argued that he was denied his constitutional right to a speedy trial. Second, he
claimed that his trial attorneys were ineffective by failing to properly assert an
NGI plea on his behalf and by failing to retain an NGI evaluator of Johnson’s
choice. Finally, Johnson claimed that his sentence was unduly harsh. Johnson’s
postconviction motion was denied after a Machner5 hearing, and this appeal
follows.
DISCUSSION
A. Constitutional Right to a Speedy Trial
¶9 Wisconsin courts employ a four-part balancing test to determine
whether a person’s constitutional right to a speedy trial was violated,
considering: (1) the length of the delay; (2) the reason for the delay; (3) whether
the defendant asserted his or her right to a speedy trial; and (4) whether the delay
resulted in prejudice to the defendant. State v. Borhegyi, 222 Wis. 2d 506, 509,
588 N.W.2d 89 (Ct. App. 1998). The length of the delay is a threshold
consideration, and the inquiry goes no further unless the reviewing court
concludes that it is presumptively prejudicial. See Doggett v. United States, 505
U.S. 647, 652 (1992); State v. Leighton, 2000 WI App 156, ¶7, 237 Wis. 2d 709,
616 N.W.2d 126. Generally, a post-accusation delay approaching one year is
considered to be presumptively prejudicial. Borhegyi, 222 Wis. 2d at 510.
¶10 Speedy trial claims are assessed based on the totality of the
circumstances. State v. Urdahl, 2005 WI App 191, ¶11, 286 Wis. 2d 476, 704
5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
5
No. 2021AP926-CR
N.W.2d 324. Generally, none of the four factors are “either a necessary or
sufficient condition” to finding a speedy trial violation. Barker v. Wingo, 407
U.S. 514, 533 (1972). Rather, the four factors must be contemplated “together
with such other circumstances as may be relevant.” Id. The remedy for a
defendant whose constitutional right to a speedy trial is violated is dismissal of the
charges. Urdahl, 286 Wis. 2d 476, ¶11.
¶11 Johnson asserts that his pretrial incarceration of nearly three years
violated his constitutional right to a speedy trial, requiring that his conviction be
vacated. Although Johnson acknowledges the four-part balancing test, he provides
no meaningful discussion of the test as applied to his case. This court need not
address an issue so lacking in organization and substance that for the court to
decide the issue, it would first have to develop it. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Even applying the test, however,
Johnson’s claim fails.
¶12 If, as here, the delay is presumptively prejudicial, the length of the
delay is one factor in the four-part balancing test. Doggett, 505 U.S. at 652. As
one of the four factors, “the presumption that pretrial delay has prejudiced the
accused intensifies over time.” Id. Although the State acknowledges that this
factor likely weighs in Johnson’s favor, it argues that other factors diminish the
significance of the delay. We agree.
¶13 Regarding reasons for the delay, courts weigh delay heavily against
the State where the State makes “[a] deliberate attempt … to delay the trial in
order to hamper the defense.” Urdahl, 286 Wis. 2d 476, ¶26. Delays caused by
the State’s negligence or overcrowded courts also count against the State, though
courts weigh those delays less heavily. Id. Many types of delays do not count at
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No. 2021AP926-CR
all, including delays caused by witness unavailability, see id., the litigation of
pretrial motions, see Scarbrough v. State, 76 Wis. 2d 87, 101, 250 N.W.2d 354(1977), and the ordinary demands of the judicial system, see Norwood v. State, 74
Wis. 2d 343, 354, 246 N.W.2d 801 (1976). Additionally, “if the delay is caused
by the defendant, it is not counted.” Urdahl, 286 Wis. 2d 476, ¶26.
¶14 Here, roughly the first year of delay was reasonably attributed to the
ordinary demands of the judicial system and the litigation of a pretrial motion.
Johnson demanded a speedy trial on April 25, 2017, but he subsequently withdrew
that request to pursue retesting of DNA. At least eight months passed before the
DNA was retested, and Johnson makes no claim that this delay was attributable to
the State. Johnson discharged his first trial attorney in July 2018, and the
remainder of the time until the April 2019 trial involved pretrial hearings and the
litigation of a pretrial motion. Because significant periods of delay were
attributable to Johnson, this factor favors the State. Similarly, the third factor—
whether Johnson asserted his speedy trial right—also favors the State, as Johnson
made, but withdrew, a speedy trial request.
¶15 With respect to the fourth factor—prejudice to the defendant—
courts assess prejudice in light of the interests that the speedy trial right
protects: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety
and concern of the accused; and (3) limiting the possibility that the defense will be
impaired. See id., ¶34. Of these interests, impairment of the defense is the most
important, and it exists where witnesses die or disappear during the delay, where
defense witnesses cannot recall events pertinent to the case, or where the
defendant is encumbered in his or her ability to gather evidence. See id.; see also
Scarbrough, 76 Wis. 2d at 98. Although a defendant need not show actual
prejudice to prevail on a speedy trial claim, see Leighton, 237 Wis. 2d 709, ¶25,
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No. 2021AP926-CR
the absence or scarcity of prejudice strongly weighs against finding a speedy trial
violation, see, e.g., Barker, 407 U.S. at 534. Here, Johnson does not address how
he was prejudiced by the delay, and no such prejudice is evident from the record.
Because three of the four factors for assessing a speedy trial claim favor the State,
we conclude that the circuit court properly rejected this claim.
B. Ineffective Assistance of Johnson’s Trial Counsel
¶16 Next, Johnson argues that the ineffectiveness of his trial attorneys
warrants a new trial. This court’s review of an ineffective assistance of counsel
claim is a mixed question of fact and law. State v. Erickson, 227 Wis. 2d 758,
768, 596 N.W.2d 749 (1999). The circuit court’s findings of fact will not be
disturbed unless they are clearly erroneous. Id. However, the ultimate
determination of whether the attorney’s performance falls below the constitutional
minimum is a question of law that this court reviews independently. Id.¶17 To substantiate a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that
counsel’s errors were prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984). A court need not address both components of this inquiry if the defendant
does not make a sufficient showing on one. See id. at 697.
¶18 Johnson argues that his attorneys were ineffective by failing to
timely enter an NGI plea on his behalf.6 At the Machner hearing, Johnson
6
For the first time on appeal, Johnson argues that his trial counsel was ineffective “for
failing to object to [Alice’s] forensic interview.” We need not consider an ineffective assistance
of counsel claim that was not raised in the circuit court or addressed at a Machner hearing. See
State v. Thompson, 222 Wis. 2d 179, 190 n.7, 585 N.W.2d 905 (Ct. App. 1998).
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No. 2021AP926-CR
testified that he made repeated requests for both of his attorneys to enter an NGI
plea. His first attorney, Daniel Chapman, testified that he discussed the possibility
of an NGI plea with Johnson, but based on their discussion, Chapman concluded
that “nothing … rose to the level of [Johnson] not understanding that the conduct
alleged was right or wrong, or that he was incapable of conforming himself to the
law.” Chapman, therefore, did not request an NGI evaluation or enter an NGI plea
on Johnson’s behalf. An attorney is allowed to “make a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.
Chapman considered Johnson’s reasons for believing he was an NGI candidate
and, after evaluating the legal standard, determined that Johnson could not meet it.
That determination is presumed reasonable, see id. at 689, and Johnson offers
nothing but speculation to overcome that presumption.
¶19 Johnson’s subsequent counsel, Ryan Reid, testified that he also
discussed an NGI plea with Johnson. Although Reid did not believe that Johnson
was an NGI candidate, he retained an expert to evaluate Johnson. That expert’s
opinion did not support an NGI plea. When asked whether Johnson wanted to
pursue the plea despite the evaluator’s opinion, Reid responded: “That was
unclear, at least to me.… I did tell him we would need evidence to support the
plea. My recollection is he never said, Mr. Reid, I want to enter the plea.”
According to Reid, Johnson did not tell him to enter the plea until the morning of
trial.
¶20 In concluding that neither attorney was deficient with respect to their
handling of Johnson’s alleged desire to enter an NGI plea, the circuit court found
that Johnson had exhibited a “pattern of indecision.” The court recounted that
“Mr. Chapman never indicated that [Johnson] said, file an NGI plea and
Mr. Chapman said, no.” Further, the court found that Reid “never got the directive
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No. 2021AP926-CR
[to enter an NGI plea] until the morning of trial.” On appeal, Johnson ignores the
court’s findings—in particular, that the court did not believe Johnson’s claim that
he clearly demanded to enter an NGI plea before the first day of trial. Despite
Johnson’s claims to the contrary, the circuit court, as fact finder, is the ultimate
arbiter of witness credibility, and we must uphold its factual findings unless they
are clearly erroneous. See State v. Peppertree Resort Villas, Inc., 2002 WI App
207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345. The court’s findings are supported
by the record.
¶21 To the extent Johnson alleges that his attorneys were ineffective by
failing to “thoroughly” discuss his right to enter an NGI plea, the evidence does
not support his claim. In his brief, Johnson recounts that both of his attorneys
testified that they had multiple conversations with him regarding such a plea. It
may be that Johnson is alleging a failure to properly evaluate whether an NGI plea
could be pursued. Reid, however, obtained an NGI evaluation, and, as outlined
above, a second evaluation was ordered after the jury trial. Neither evaluation
supported an NGI plea.
¶22 Next, Johnson asserts that his trial attorneys were ineffective by
failing to pursue a speedy trial. As recounted above, Chapman sought, but then
withdrew, a speedy trial demand because Johnson wanted to pursue retesting of
DNA evidence. Chapman testified that after receiving the test results, Johnson
was indecisive about whether he wanted to accept a plea offer or move forward
with a trial. Chapman added that he eventually told Johnson, “look, if we are not
going to be accepting an offer[,] we need to set this for trial,” and Johnson then
asked him to withdraw. In turn, Reid testified that in his conversations with
Johnson, there was no discussion of demanding a speedy trial.
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No. 2021AP926-CR
¶23 The circuit court rejected Johnson’s claim that his attorneys were
ineffective with respect to his speedy trial right, finding that there was no evidence
Johnson asked his attorneys to file a speedy trial demand and the attorneys
refused. The record supports this finding.
¶24 Johnson also claims that his trial counsel failed to “effectively
cross-examine” Alice. At the Machner hearing, Reid explained that after
“reviewing the discovery, preparing for trial, speaking with Mr. Johnson,” and
being at the trial, “there weren’t any inconsistencies” in Alice’s testimony.
Counsel therefore determined there was “no good faith reason” to ask a question
just “to attack the witness.” The circuit court determined that Reid made a
reasonable strategic decision not to attack Alice on cross-examination.
¶25 “[W]here a lower court determines that counsel had a reasonable
trial strategy, the strategy is virtually unassailable in an ineffective assistance of
counsel analysis.” State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d 431, 904
N.W.2d 93 (internal quotations omitted). Moreover, the fact that a strategy fails
does not make the attorney’s representation deficient. See State v. Koller, 87
Wis. 2d 253, 264, 274 N.W.2d 651 (1979). For the reasons discussed above, we
are not persuaded that Johnson demonstrated deficient performance on the part of
either of his attorneys.
C. Resentencing
¶26 Johnson argues that he is entitled to resentencing because his
sentence to the maximum term of initial confinement was unduly harsh. In
determining whether a sentence is excessive or unduly harsh, the circuit court’s
decision will be upheld unless it is based on an erroneous exercise of discretion.
State v. Scaccio, 2000 WI App 265, ¶17, 240 Wis. 2d 95, 622 N.W.2d 449. The
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No. 2021AP926-CR
sentence imposed should be the minimum amount of confinement that is
consistent with three primary sentencing factors: (1) the gravity of the offense;
(2) the character of the defendant; and (3) the need to protect the public. See State
v. Gallion, 2004 WI 42, ¶¶23, 59-61, 270 Wis. 2d 535, 678 N.W.2d 197.
¶27 The weight to be given each of the primary factors is within the
discretion of the sentencing court, and the sentence may be based on any or all of
the three primary factors after all relevant factors have been considered. See State
v. Wickstrom, 118 Wis. 2d 339, 355, 348 N.W.2d 183 (Ct. App. 1984). “As long
as the [circuit] court considered the proper factors and the sentence was within the
statutory limitations, the sentence will not be reversed unless it is so excessive as
to shock the public conscience.” State v. Owen, 202 Wis. 2d 620, 645, 551
N.W.2d 50 (Ct. App. 1996). Here, the circuit court considered the proper
sentencing factors when imposing the maximum sentence.
¶28 With respect to the gravity of the offense, the circuit court noted that
this Class B felony “is almost … the most severe offense that you can commit in
the State of Wisconsin,” adding that Johnson had committed a “heinous” crime
against “an innocent, defenseless child sleeping in … her own bed.” Turning to
Johnson’s character, the court highlighted the “strong” evidence that Johnson had
assaulted numerous children. Although the court expressed sympathy for
Johnson’s claim that he had been a victim of sexual assault, the court noted that
being a victim did not justify becoming a predator. Finally, the court stressed the
importance of protecting the public in light of Johnson’s apparent “habit” of
sexually assaulting children and his refusal to accept responsibility for his actions.
The court expressed its belief that if Johnson was not imprisoned, he would
engage in the same type of activity. The maximum sentence was therefore
“designed to make sure” Johnson never committed another child sexual assault.
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No. 2021AP926-CR
¶29 Johnson nevertheless asserts that his sentence is harsh when
compared to lesser sentences imposed for the same offense in cases involving
what he deems to be more aggravating circumstances. Sentencing in Wisconsin,
however, is individualized, see Gallion, 270 Wis. 2d 535, ¶48, and “[u]ndue
leniency in one case does not transform a reasonable punishment in another case
to a cruel one,” Ocanas v. State, 70 Wis. 2d 179, 189, 233 N.W.2d 457 (1975)
(citation omitted). Because the sentencing court properly exercised its discretion
when it considered relevant factors and imposed a sentence authorized by law, the
court properly denied Johnson’s motion for resentencing.
By the Court.—Judgment and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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