State v. Corey Benson ( 2019 )

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.
July 30, 2019
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 Nos.
2016AP1621-CR Cir. Ct. Nos. 2010CF5710
2011CF1521
2016AP1622-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
COREY BENSON,
DEFENDANT-APPELLANT.
APPEALS from judgments and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI and M. JOSEPH DONALD, Judges.
Affirmed.
Before Brash, P.J., Brennan and Dugan, 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).
Nos. 2016AP1621-CR
2016AP1622-CR
¶1 PER CURIAM. Corey Benson, pro se, appeals from judgments,
entered upon a jury’s verdicts, convicting him on one count of child abuse, one
count of child neglect, one count of first-degree intentional homicide, and two
counts of felony bail jumping. Benson also appeals from an order denying his
postconviction motion without a hearing. Benson complains that the two
underlying circuit court cases were improperly joined and that he received
ineffective assistance from trial counsel. We reject Benson’s challenges and
affirm the judgments and order.
BACKGROUND
¶2 Around September 2010, Benson began dating W.F., who had a two-
year-old son, K.C. On October 25, 2010, W.F. asked Benson to pick K.C. up from
daycare because she was working until 8:30 p.m.; Benson agreed. W.F. then
called Benson for a ride after she finished work. When Benson picked her up, he
told her that K.C. had suffered a bruised stomach while the two were playing
football. When they arrived home, W.F. checked her son’s stomach and noted it
was purple around the navel. K.C. was also limp and lethargic. W.F. and Benson
took K.C. to the hospital, where it was determined that he had suffered multiple
liver lacerations, extensive abdominal bruising, and massive internal injuries,
including a spleen injury. K.C. was hospitalized for six days. The consulting
physician reported that such a presentation “is virtually diagnostic of abusive or
inflicted abdominal trauma” and could have easily resulted in K.C.’s death had
W.F. not sought medical attention for him.
¶3 On November 11, 2010, Benson was arrested in his home without a
warrant; a circuit court commissioner found probable cause the following day.
Someone posted Benson’s $25,000 cash bail. On November 15, 2010, the State
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filed a criminal complaint in Milwaukee County Circuit Court case
No. 2010CF5710 (the 2010 case), charging Benson with one count of child abuse
by intentionally causing great bodily harm and one count of child neglect resulting
in bodily harm. At an initial appearance on November 15, 2010, Benson was
ordered to have no contact with W.F. and K.C. Benson’s bail was also reduced to
$15,000.
¶4 On April 2, 2011, Benson walked into a hospital with an
unresponsive K.C. in his arms. K.C. was fully clothed, warm to the touch, and dry
except for a spot on the front of his pants, which was consistent with K.C.
urinating on himself. When the trauma nurse asked what had happened, Benson
told her that he found K.C. face down in the bathtub. When medical personnel
attempted to intubate K.C., they encountered chewed, undigested food in his
throat; Benson said that he had fed K.C. breakfast before putting him in the
bathtub. Benson told hospital staff that he changed K.C. into clothes and brought
him to the hospital instead of calling 911. While in the room where staff were
attempting to revive K.C., Benson reportedly repeated to himself, “[H]ow am I
going to explain this?”
¶5 Efforts to resuscitate K.C. failed, and police were called for a “dead
on entry” complaint. A nurse reported to one officer that she had observed three
bruises, one as large as a half-dollar, on K.C.’s forehead. A responding detective
observed K.C.’s body and noted his opinion that “it was apparent that K.C. was
beaten or abused causing injury to K.C.’s head, specifically swelling and
contusions.” The medical examiner’s report later noted:
blunt force trauma to K.C.’s head and neck; contusions to
K.C.’s head; lacerations to K.C.’s oral mucosa and
hemorrhage of the frenulum; blunt force trauma to K.C.’s
thorax, abdomen, and pelvis; compression injuries to
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K.C.’s chest, abdomen, and buttocks; hemorrhages and
hematomas of muscles in the buttocks; compressions and
edema of the scrotum; [and] blunt force trauma to the lower
extremities, including acute hemorrhages of muscles within
the lower extremities.
The medical examiner concluded that K.C. was “a child with multiple blunt force
injuries resulting in his death, a homicide.” On April 7, 2011, the State charged
Benson in Milwaukee County Circuit Court case No. 2011CF1521 (the 2011 case)
with one count of first-degree reckless homicide and two counts of felony bail
jumping.
¶6 In light of the new charges, the State moved to modify Benson’s bail
in the 2010 case. Benson’s attorney in the 2010 case also moved to withdraw on
the grounds that Benson was in arrears and would not be able to comply with the
remaining payment terms. At the bail hearing date, Benson was not produced.
Benson’s bail was increased to $250,000, but the motion to withdraw was
rescheduled so Benson could be present. At the withdrawal hearing, Benson
indicated that he wanted to retain the attorney for both cases, but counsel was
skeptical that Benson could secure the funds.1 Counsel was allowed to withdraw.
Attorney Ann Bowe was eventually appointed by the Office of the State Public
Defender to represent Benson. A preliminary hearing was held for the charges in
the 2011 case, and Benson was bound over for trial.
¶7 In May 2011, the State moved to join the two cases. Attorney Bowe
objected, noting among other things that Benson planned to testify in the child
1
Counsel’s retainer had evidently been paid by the same person who posted Benson’s
initial $25,000 bail.
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abuse case but not in the homicide case and contending that joinder would be more
prejudicial than probative. Joinder was ultimately granted.
¶8 In June 2011, Attorney Bowe moved to withdraw as counsel; that
request was granted and Attorney Michael Hicks was appointed. Attorney Hicks
moved to suppress statements Benson made to police on or after October 25, 2010,
based on alleged violations of Miranda v. Arizona, 384 U.S. 436, 444 (1966)
(right to remain silent), or Edwards v. Arizona, 451 U.S. 477, 482 (1981) (right to
counsel during interrogation). The State sought clarification on whether Attorney
Hicks would also be seeking to challenge the joinder decision, which had been
made by a different judge while Attorney Bowe was on the case. The trial court
indicated that it did not plan to revisit the joinder decision, and Attorney Hicks
later confirmed he would not be challenging the joinder decision.2 The
Miranda/Edwards motion was eventually denied.
¶9 The day of the trial court’s decision on the Miranda/Edwards
motion, the parties also had a discussion regarding the State’s potential
amendment of the first-degree reckless homicide charge to first-degree intentional
homicide. The trial court ultimately allowed the amendment. However, an issue
arose regarding Attorney Hicks, who, while on the public defender’s list as
certified to represent individuals for up to Class B felonies, was not on the public
2
By this point, the cases had been transferred to the Honorable David L. Borowski, who
presided over the trial and sentenced Benson. We will refer to him as the trial court. The
Honorable M. Joseph Donald later reviewed and denied the postconviction motion. We will refer
to him as the circuit court.
We note that the Honorable Mary Kuhnmuench presided over the 2010 case for a time,
and that the Honorable Jeffrey A. Conen presided over both cases for a period of time, including
the decision to grant joinder. However, we do not make any additional distinctions in the main
text regarding these judges.
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defender’s list of attorneys certified to represent individuals on Class A felonies
like first-degree intentional homicide. The trial court determined, however, that
the certification was a “hypertechnicality,” noting that Attorney Hicks was
adequately qualified to represent Benson on the other charges and Benson was
facing over 100 years’ imprisonment before the charge was amended, so the
penalty increase was, practically speaking, not that great. The trial court also
commented that “certification” would have simply required Attorney Hicks to fill
out some paperwork that would have included obtaining recommendations from
judges, and the trial court indicated it would have provided one. The trial court
noted that the paperwork would change nothing about its belief that Attorney
Hicks was “completely, absolutely able” to try the pending cases.
¶10 As noted, the cases were tried to a jury, and the jury convicted
Benson on all five charges: child abuse, child neglect, first-degree intentional
homicide, and two counts of felony bail jumping. The trial court sentenced
Benson to life imprisonment without the possibility of extended supervision for
the homicide, and a combination of concurrent and consecutive sentences on the
other charges totaling an additional fifteen years’ imprisonment.
¶11 Benson was appointed postconviction counsel, who later moved to
withdraw because Benson wanted to represent himself. The motion to withdraw
was granted.3 Benson then filed a pro se postconviction motion alleging that he
was illegally arrested, the cases were improperly joined, and he received
ineffective assistance from Attorney Hicks. The circuit court ordered briefing, but
3
The Honorable Lindsey A. Grady granted postconviction counsel’s withdrawal motion.
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denied the motion without a hearing. Benson appeals. Additional facts will be
discussed as necessary.
DISCUSSION
¶12 In his appellate brief, Benson raises three issues: an unlawful arrest,
improper joinder, and ineffective assistance of trial counsel. The general remedy
for an unlawful arrest would be application of the exclusionary rule. See State v.
Smith, 131 Wis. 2d 220, 240, 388 N.W.2d 601 (1986), abrogated on other
grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775.
However, Benson never sought to suppress anything based on his arrest, so any
direct challenge to the arrest has been forfeited. See State v. Ndina, 2009 WI 21,
¶¶29-30, 315 Wis. 2d 653, 761 N.W.2d 612. A forfeited error may nevertheless
be reviewed within the context of an ineffective assistance claim. See State v.
Langlois, 2017 WI App 44, ¶17, 337 Wis. 2d 302, 901 N.W.2d 768; see also
State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). Thus, we will
review the arrest issue as a part of that discussion. See id.I. Joinder
¶13 Multiple crimes “may be charged in the same complaint … if the
crimes charged … are of the same or similar character or are based on the same act
or transaction or on 2 or more acts or transactions connected together or
constituting parts of a common scheme or plan.” See WIS. STAT. § 971.12(1)
(2017-18).4 Crimes charged in separate complaints may be joined “to be tried
4
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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together if the crimes … could have been joined in a single complaint[.]” See
§ 971.12(4). “The joinder statute is to be broadly construed in favor of initial
joinder.” State v. Salinas, 2016 WI 44, ¶31, 369 Wis. 2d 9, 879 N.W.2d 609.
¶14 “Whether the initial joinder was proper is a question of law that we
review without deference to the trial court[.]” See State v. Locke, 177 Wis. 2d
590, 596, 502 N.W.2d 891 (Ct. App. 1993). However, our supreme court “‘has
historically favored’ initial joinder particularly when the charged crimes were all
‘committed by the same defendant.’” Salinas, 369 Wis. 2d 9, ¶36 (citation
omitted). Initial joinder decisions are broadly interpreted to promote the
objectives of the joinder statute: “(1) trial economy and convenience; (2) to
promote efficiency in judicial administration; and (3) to eliminate multiple trials
against the same defendant, which promotes fiscal responsibility.” Id.¶15 Crimes “are of the ‘same or similar character’” if they are “the same
type of offenses occurring over a relatively short period of time” with overlapping
evidence as to each. See State v. Hamm, 146 Wis. 2d 130, 138, 430 N.W.2d 584(Ct. App. 1988) (citation omitted). Here, the trial court noted that “[t]he only
difference between these two cases is the fact that the child unfortunately died in
the second case.” Although we review initial joinder decisions without deference,
we agree that the child abuse/neglect charges are of the same or similar character
as the homicide charge. We further note that there was overlapping evidence, in
that the victim was the same in both cases, as were the circumstances surrounding
K.C.’s injuries, which were allegedly sustained when K.C. was in Benson’s
exclusive care. Moreover, less than six months had passed between the two cases.
¶16 In addition, the felony bail jumping charges are “connected
together” with the other offenses, see WIS. STAT. § 971.12(1), because all five
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crimes involve the same victim and the bail jumping charges are based on
Benson’s release on bail in the 2010 case at the time he committed the offenses in
the 2011 cases. See Salinas, 369 Wis. 2d 9, ¶¶42-43.
¶17 Benson protests that the offenses are not of the same or similar
character, based on his apparent belief that the “‘crimes must be so nearly
identical, so unusual and distinctive, as to be like the defendant’s signature.’” See
Sanford v. State, 76 Wis. 2d 72, 86, 256 N.W.2d 348 (1977) (Abrahamson, J.,
dissenting). Benson is mistaken. The dissent in Sanford is discussing use of
similar crimes to prove identity of a perpetrator as an exception to the general
prohibition against other acts evidence. Cf. id. at 78-79 (majority opinion).
Identity of the perpetrator is not an issue in this case.
¶18 To the extent that Benson is challenging joinder because joinder
might be prejudicial due to the admission of other acts evidence—i.e., admission
of the child abuse evidence into the homicide case—we note that that where
offenses meet the criteria for initial joinder, “it is presumed that the defendant will
suffer no prejudice from a joint trial.”5 See State v. Leach, 124 Wis. 2d 648, 669,
370 N.W.2d 240 (1985). Prejudice is generally not a factor for consideration
absent a motion to sever. See Locke, 177 Wis. 2d at 597. While Benson objected
to joinder, he never moved to sever the counts. However, “when evidence of the
counts sought to be severed would be admissible in separate trials, the risk of
5
Attorney Bowe argued against joinder because Benson wanted to testify in the child
abuse case but not the homicide case. On appeal, Benson complains, briefly, that her argument
was “unprepared.” We note, however, that requiring a defendant to choose between the right to
testify and the right to remain silent is not unconstitutional where, as here, evidence of the joined
crimes would be admissible in separate trials. See State v. Hall, 103 Wis. 2d 125, 146-50, 307
N.W.2d 289 (1981).
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prejudice arising because of joinder is generally not significant.” See id. Here, the
evidence relative to the child abuse and neglect charges would be admissible in the
homicide case, and vice versa, at least to show opportunity and absence of mistake
or accident. See id.; see also WIS. STAT. § 904.04(2) (discussing acceptable
purposes for admission of other acts evidence).
¶19 Benson also contends that “tainted statements” obtained following
his unlawful arrest were used to justify joinder. However, Benson does not
identify the “tainted” statements, state how they were used in support of joinder,
or indicate where the court relied on the tainted statements in its joinder decision.6
“We do not consider undeveloped arguments.” State v. O’Connell, 179 Wis. 2d
598, 609, 508 N.W.2d 23 (Ct. App. 1993).
¶20 In short, the child abuse and neglect charges and the homicide
charge are of the same or similar character, and all five charges are connected
together. In addition, the crimes were allegedly committed by the same defendant,
and joinder of the cases promotes trial economy, judicial efficiency, and fiscal
responsibility. See Salinas, 369 Wis. 2d 9, ¶36. We therefore conclude the
charges in the two cases were properly joined.
II. Ineffective Assistance of Trial Counsel
¶21 “A hearing on a postconviction motion is required only when the
movant states sufficient material facts that, if true, would entitle the defendant to
relief.” State v. Allen, 2004 WI 106, ¶14, 274 Wis. 2d 568, 682 N.W.2d 433.
Whether the motion alleges such facts is a question of law. See id., ¶9. If the
6
Further, as we will explain below, the arrest was not unlawful.
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motion raises sufficient material facts, the circuit court must hold a hearing. See
id. If the motion does not raise sufficient material facts, if the motion presents
only conclusory allegations, or if the record conclusively shows the defendant is
not entitled to relief, then the decision to grant or deny a hearing is left to the
circuit court’s discretion. See id.
¶22 The circuit court has the discretion to deny “even a properly pled
motion … without holding an evidentiary hearing if the record conclusively
demonstrates that the defendant is not entitled to relief.” See State v. Sulla, 2016
WI 46, ¶30, 369 Wis. 2d 225, 880 N.W.2d 659. “We review a circuit court’s
discretionary decisions under the deferential erroneous exercise of discretion
standard.” Id., ¶23 (citation omitted). Our review is limited to the four corners of
the postconviction motion, not additional arguments raised in the appellant’s brief.
See Allen, 274 Wis. 2d 568, ¶27.
¶23 To prevail on an ineffective assistance claim, the defendant must
show both that counsel’s performance was deficient and that the deficiency was
prejudicial. See Erickson, 227 Wis. 2d at 768. To prove deficient performance,
“the defendant must identify specific acts or omissions … that fall ‘outside the
wide range of professionally competent assistance.’” See State v. Taylor, 2004
WI App 81, ¶13, 272 Wis. 2d 642, 679 N.W.2d 893 (citation omitted). The test
for prejudice is “whether ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” State v. Balliette, 2011 WI 79, ¶24, 336 Wis. 2d 358, 805 N.W.2d 334(citation omitted).
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¶24 A defendant must satisfy both prongs of the ineffective assistance
test; we need not address both if the defendant fails to make a sufficient showing
on one. See State v. Maloney, 2005 WI 74, ¶14, 281 Wis. 2d 595, 698 N.W.2d
583. When it comes to reviewing an attorney’s performance, there is a “strong
presumption” that counsel’s conduct is reasonable. See State v. Carter, 2010 WI
40, ¶22, 324 Wis. 2d 640, 782 N.W.2d 695 (citation omitted). An attorney’s
performance “need not be perfect, nor even very good, to be constitutionally
adequate.” See id.¶25 In his postconviction motion, Benson alleged that trial counsel was
ineffective in four ways. First, he asserts that because Attorney Hicks was
“outside the legal rules of the SPD office,” he was not “full adequate counsel … as
guaranteed by the sixth amendment.” Second, Benson contends that “[f]ailure to
challenge an unconstitutional arrest made appointed counsel’s performance
deficient.” Third, he complains that Attorney Hicks’s failure to “object to the use
of the tainted police statements when asked about joinder … is deficient and
everything he does is prejudicial[.]” Finally, Benson contends that the amendment
of the homicide charge from reckless to intentional “is the stimulant that induced
an unprepared and an incoherent ‘accident’ theory by appointed counsel,” a theory
that counsel presented to the jury “absent factual and plausible evidence.” We
address each claim in turn.
A. State Public Defender Certification
¶26 Benson complains that Attorney Hicks was ineffective for
continuing to represent him despite not being certified by the State Public
Defender for Class A felony cases. Benson believes that Attorney Hicks was
“ineligib[le] to be my constitutional representative at trial.”
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¶27 First, we note that Attorney Hicks was not deficient with respect to
his certification: he informed the trial court of the issue, which the trial court—not
Attorney Hicks—determined was not a bar to his continuation as trial counsel.
Second, Benson points us to no authority by which Attorney Hicks was
disqualified as a matter of law from continuing, particularly when the trial court
would not allow him to withdraw.7
¶28 Further, we are not persuaded that the trial court erred in maintaining
Attorney Hicks as trial counsel. The State Public Defender maintains a list of
attorneys qualified to accept public defender appointments. See WIS. ADMIN.
CODE § PD 1.04 (June 2010).8 Becoming certified for inclusion on the list
generally requires an application form, see WIS. ADMIN. CODE § PD 1.03(1), plus
other basic requirements, like a license to practice in Wisconsin and residency in
the state, see WIS. ADMIN. CODE § PD 1.035. Attorneys who want to accept
appointments for misdemeanor and paternity cases have no additional
requirements; the additional certification requirements for attorneys who want to
accept appointments for other cases vary by case type. See WIS. ADMIN. CODE
§ PD 1.04(1)-(13). These additional requirements mainly involve experience and
continuing education.
7
We do not mean to suggest that the public defender’s certification requirements should
be routinely disregarded, as they serve an important purpose in ensuring skilled representation.
We hold only that in these cases, Hicks’s lack of formal Class A certification was not a bar to his
continuation as counsel in light of the trial court’s findings regarding Hicks and other facts of
these cases.
8
All references to the Wisconsin Administrative Code are to the version current through
June 2010.
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¶29 However, certification by the State Public Defender is not a
prerequisite to practicing law in this state, nor to accepting a public defender
appointment. Indeed, the public defender may allow an attorney’s education,
training, or experience to substitute for any certification requirements, and the
public defender may waive the certification requirements “to assign a case to an
attorney who has a prior pending case with the same client.” WIS. ADMIN. CODE
§ PD 1.04(15). Moreover, had Attorney Hicks been privately retained by Benson
or appointed at county expense, his certification level with the public defender
would be irrelevant.
¶30 The trial court here made an ample record explaining precisely why
Attorney Hicks would continue as trial counsel, notwithstanding the change in the
felony classification. The trial court noted that the only substantive change when
the first-degree reckless homicide charge was amended to first-degree intentional
homicide was the maximum total penalty that Benson faced and, as a practical
matter, he was already facing an effective life sentence of up to seventy-two years’
imprisonment in the homicide case, not including the additional forty-six years’
imprisonment he faced in the child abuse case. The trial court also noted that
Attorney Hicks had considerable actual experience, and that its experiences with
Attorney Hicks as trial counsel satisfied it that Attorney Hicks could continue. We
would additionally note that, because Attorney Hicks was certified to represent
Benson on the child abuse charges and was already doing so, we have no reason to
believe that the public defender would have done anything with the “new”
intentional homicide case other than “assign [the] case to [the] attorney who has a
prior pending case with the same client.” WIS. ADMIN. CODE § 1.04(15). Based
on the foregoing, we conclude that Attorney Hicks was not ineffective for
continuing as trial counsel.
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B. The Warrantless Arrest
¶31 Benson next complains that trial counsel was “deficient” for failing
to challenge his warrantless, in-home arrest as unconstitutional. “A warrantless
arrest is not lawful except when supported by probable cause.” State v. Lange,
2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551. “Probable cause to arrest is
the quantum of evidence within the arresting officer’s knowledge at the time of the
arrest which would lead a reasonable police officer to believe that the defendant
probably committed or was committing a crime.” State v. Secrist, 224 Wis. 2d
201, 212, 589 N.W.2d 387 (1999). “There must be more than a possibility or
suspicion that the defendant committed an offense, but the evidence need not
reach the level of proof beyond a reasonable doubt or even that guilty is more
likely than not.” Id.¶32 The record reflects that, at the time of Benson’s arrest on the child
abuse and neglect charges, police knew, from Benson’s own non-custodial
statements, that he had been babysitting K.C. and that he had been playing football
and roughhousing with K.C. Police also knew that K.C.’s doctors had advised that
his injuries were life-threatening and inconsistent with Benson’s version of events.
Further, K.C. had also told his mother at the hospital that Benson had hurt him.
We therefore agree with the State and the circuit court that, taken together, these
facts provided probable cause for arrest, so police did not need a warrant to arrest
Benson.
¶33 “[E]ven if police have probable cause to arrest a defendant, entering
a defendant’s home without a warrant to accomplish an arrest violates the Fourth
Amendment.” Felix, 339 Wis. 2d 670, ¶29 (citing Payton v. New York, 445 U.S.
573, 590 (1980)). Thus, Benson also protests the arresting officers’ warrantless
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entry into his home, asserting there were no exigent circumstances and there was
ample time for police to obtain a proper warrant.
¶34 “Searches conducted without a warrant are deemed unreasonable per
se unless they fall within one of ‘a few specifically established and well-delineated
exceptions.’” State v. Krajewski, 2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d
385 (citations omitted). “Two of the carefully delineated exceptions to the warrant
requirement are consent searches and searches based on exigent circumstances.”
Id. Here, the exigent circumstances exception is irrelevant because Benson
consented to the police entry into his home.9 It is further of no import that police
perhaps could have taken the time to secure a warrant: a warrant is not required to
effectuate an arrest supported by probable cause. See WIS. STAT. § 968.07(1)(d).
¶35 Because the warrantless arrest was supported by probable cause, and
because entry into Benson’s home was authorized by his consent, any motion to
suppress based on a claim of an unlawful arrest would have failed. “It is well-
established that an attorney’s failure to pursue a meritless motion does not
constitute deficient performance.” State v. Cummings, 199 Wis. 2d 721, 747
n.10, 546 N.W.2d 406 (1996). Thus, Attorney Hicks was not ineffective for
failing to challenge Benson’s arrest.
C. Joinder
¶36 Benson next complains that Attorney Hicks “stood by while tainted
evidence was concealed by joinder law.” He complains that Attorney Hicks was
9
In his appellate brief, Benson does not assert that he did not consent to police entering
this home. Rather, he argues that he never gave consent to be arrested. However, police did not
need consent to arrest him because the arrest was supported by probable cause.
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ineffective for not seeking reconsideration of the joinder ruling. However, his
claim of “tainted” evidence is based on his belief that his arrest was illegal. As we
just explained, it was not, so there was no “tainted evidence.”
¶37 In any event, Benson does not identify with any specificity what
“tainted evidence” was used or how it resulted in improper joinder. Conclusory
allegations are insufficient to garner a hearing on a postconviction motion. See
Allen, 274 Wis. 2d 568, ¶9. Moreover, we have explained that joinder was proper,
and Benson demonstrates no grounds on which a reconsideration motion would
have succeeded. Attorney Hicks was not ineffective for failing to pursue a
meritless reconsideration motion. See Cummings, 199 Wis. 2d at 747 n.10.
D. Amended Charges
¶38 Fourth, Benson complains that Attorney Hicks was deficient for
failing to object to the amendment of the homicide charge and that this failure
prejudiced him because it resulted in “an unprepared and an incoherent ‘accident’
theory” of defense. However, the record reflects that Attorney Hicks did, in fact,
object to the amendment, arguing that it might be appropriate but only at the close
of evidence if the evidence adduced at trial supported the change. Benson does
not demonstrate that alternative grounds for objection would have been successful.
¶39 With respect to Benson’s claim that the accident defense was
undeveloped, he contends:
Aside from wounding indigent pro se defendant, the
jury was bereaved from hearing testimonies from expert
and from character witnesses who would have challenged
the prosecution’s theory. A character witness motion was
filed for pro se defendant, although no character witnesses
were called on behalf of indigent pro se defendant. It is
probable that the factual evidence not used for the defense
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and unheard by the jury, if presented, would have greatly
affected the outcome of the trial.
Benson does not assert who these uncalled witness were, what they had to say,
why their testimony was relevant, or how that testimony “would have greatly
affected the outcome of the trial.” See Allen, 274 Wis. 2d 568, ¶23 (explaining
that a sufficiently pled postconviction motion will allege “who, what, where,
when, why, and how”). Again, conclusory allegations in a postconviction motion
simply do not suffice.
III. Summation
¶40 Joinder of the cases was proper: the child abuse, neglect, and
homicide charges are of the same or similar character and all five charges are
“connected together.” Benson’s allegations of ineffective assistance are either
refuted by the record or too conclusory to require a hearing. Thus, whether to
grant a hearing was a matter for the circuit court’s discretion. We are unpersuaded
that the circuit court erroneously exercised its discretion when it denied a hearing
on the motion.
By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
18