State v. Sherri L. Blackshear ( 2020 )

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.
August 19, 2020
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. 2019AP757-CR Cir. Ct. No. 2016CF290
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
SHERRI L. BLACKSHEAR,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.
Before Neubauer, C.J., Gundrum and Davis, 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).
No. 2019AP757-CR
¶1 PER CURIAM. Sherri Blackshear appeals from a judgment
convicting her on her guilty plea to delivery of heroin (< 3 grams) as a second or
subsequent offense and as a repeat offender resulting from a purchase involving a
confidential informant (CI) working with the Kenosha Drug Operation Group. A
second similar count was dismissed and read in. Postconviction, Blackshear
sought to withdraw her guilty plea based on defense counsel’s alleged
ineffectiveness for not advising her that she might have pursued an entrapment
defense and for not more diligently seeking discoverable telephone records
between her and the CI. She also moved for sentence modification for having
been deemed ineligible for the Earned Release Program (ERP) and appeals from
the order denying those motions. We affirm.
¶2 Blackshear sold and delivered heroin to the CI, who was outfitted
with an electronic video recording device. The transactions were preceded by
phone calls between the CI and Blackshear. Blackshear later submitted an
affidavit in which she claimed the CI entrapped her into buying heroin, that she
never before had used, purchased, or sold heroin, and that she did so just this once
as she was “out of balance” due to a relapse from her crack cocaine addiction. She
explained that she agreed to get heroin for the CI only because if she, the CI, and
her roommate, Paul, who also wanted drugs, pooled their money, she could get
crack cocaine at “the lowest possible price.”
¶3 At the sentencing hearing, Blackshear argued that she was but a go-
between and thus deserved minimal confinement with a focus on rehabilitation.
The State pointed out that Blackshear’s criminal history included other drug
offenses, theft, and battery. The court imposed six years’ initial confinement and
five years’ extended supervision, consecutive to her previous sentences,
emphasizing that it felt it necessary to deter her and others’ participation in a
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No. 2019AP757-CR
heroin epidemic that wreaks havoc on individuals and communities. The court
also concluded that it did not think that ERP was appropriate in light of her
repeater status.
¶4 Postconviction, Blackshear moved for sentence modification
because the trial court found her ineligible for the ERP and because defense
counsel, Attorney Rocco DeFilippis, failed to investigate and inform her of an
entrapment defense and she would have gone to trial had she known of it. She
also moved for discovery of potentially exculpatory audio recordings of telephone
calls between her and the CI that preceded the drug transactions that she
contended the State failed to disclose in response to DeFilippis’ pretrial discovery
demand.
¶5 The court conducted a Machner1 hearing, where it was established
that the surveillance video of the drug transactions did not support an entrapment
defense. DeFilippis testified “that its contents were not helpful to [Blackshear’s]
case and that her options for trial were not good.” He further testified that he told
Blackshear the CI’s video would not be helpful to her case; that he did not recall
her ever saying she initially rebuffed the CI’s attempts to solicit heroin from her
but that her “willpower was overcome” by the CI’s persistence; that Blackshear
never informed him about a phone call in which she “resisted [the CI’s] effort to
get her involved in heroin delivery”; or that he heard audiotapes of any pre-buy
phone calls that Blackshear claimed would aid an entrapment defense. The court
denied the motions.
1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
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No. 2019AP757-CR
¶6 On appeal, Blackshear first claims her guilty plea was not entered
knowingly, intelligently, or voluntarily because of faulty legal advice, as she was
not told she could have mounted an entrapment defense. “A defendant is entitled
to withdraw a guilty plea after sentencing only upon a showing of ‘manifest
injustice’ by clear and convincing evidence.” State v. Bentley, 201 Wis. 2d 303,
311-12, 548 N.W.2d 50 (1996) (citation omitted). One way is to show ineffective
assistance of counsel. State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859
N.W.2d 44.
¶7 “Whether a plea is knowing, intelligent, and voluntary is a question
of constitutional fact.” State v. Brown, 2006 WI 100, ¶19, 293 Wis. 2d 594, 716
N.W.2d 906. An appellate court “accept[s] the circuit court’s findings of
historical and evidentiary facts unless they are clearly erroneous but …
determine[s] independently whether those facts demonstrate that the defendant’s
plea was knowing, intelligent, and voluntary.” Id. “[A] factual finding is not
clearly erroneous merely because a different fact-finder could draw different
inferences from the record.” State v. Wenk, 2001 WI App 268, ¶8, 248 Wis. 2d
714, 637 N.W.2d 417.
¶8 Blackshear asserts that she was not inclined to deliver heroin and the
CI took advantage of her drug relapse. She claims she agreed to deliver heroin
only to “obtain … crack cocaine at the lowest possible price.”
¶9 Entrapment exists only “where the police have instigated, induced,
lured or incited the commission of the crime” to such a degree as to “remove the
element of volition from the conduct of the defendant.” State v. Amundson, 69
Wis. 2d 554, 565, 230 N.W.2d 775 (1975). Merely seeking or offering to buy
drugs is not the kind of inducement that establishes entrapment. Hawthorne v.
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No. 2019AP757-CR
State, 43 Wis. 2d 82, 90, 168 N.W.2d 85 (1969). To establish an entrapment
defense, the defendant first must show by the greater weight of the credible
evidence that law enforcement improperly induced him or her to commit the
offense. State v. Hilleshiem, 172 Wis. 2d 1, 8-10, 492 N.W.2d 381 (Ct. App.
1992). If improper inducement is shown, the burden then shifts to the State to
prove that the defendant was not entrapped because he or she was predisposed to
commit the crime. Id.¶10 Blackshear contends the State preyed upon her being “out of
balance” due to her history of an addiction to crack cocaine. The fact that she was
motivated to purchase the heroin to gain a beneficial price on her crack cocaine
does not reduce her willingness to commit the offense, however.
¶11 “[T]he law permits law enforcement officers to engage in some
inducement, encouragement, or solicitation in order to detect criminals.” Id. at 9.
“The fact that a government agent furnishes the accused with an opportunity to
commit the crime does not by itself constitute entrapment.” Id. “In the context of
narcotics transactions, merely seeking or offering to buy drugs is not the kind of
inducement [that] establishes entrapment.” Id. “Simply cultivating a friendship
with a person,” State v. Bjerkaas, 163 Wis. 2d 949, 956, 472 N.W.2d 615 (Ct.
App. 1991), and then asking him or her to procure narcotics, does not constitute
improper inducement. Hilleshiem, 172 Wis. 2d at 12-13.
¶12 DeFilippis testified that Blackshear never told him anything that
would support an entrapment defense. Although she told him of her disdain for
heroin, she never stated that her “willpower was overcome” by the CI’s requests
that she purchase heroin, and DeFilippis had no recollection of her informing him
of a telephone call in which she supposedly resisted the CI’s request to procure
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No. 2019AP757-CR
heroin. Although Blackshear asserts that DeFilippis ineffectively failed to pursue,
obtain and review cell phone records between her and the CI corroborating the
entrapment defense, DeFilippis testified that he had no recollection that
Blackshear informed him of any telephone calls in which she resisted the CI’s
request to procure heroin and she provided no evidence that those calls existed.
When confronted with the fact that the police made a mirror image of her phone
after her arrest and that no such phone calls were listed, Blackshear had no
explanation for their absence. The trial court found DeFilippis’ testimony to be
“truthful and accurate.”
¶13 And not only do the recorded calls not establish that the CI exerted
any undue influence on Blackshear and contain no indication that she resisted the
CI’s efforts to procure heroin, the calls also demonstrate that Blackshear willingly
participated in the drug transactions so she could “get some [crack cocaine] out of
that.” Blackshear admitted that these audio recordings contain no indication that
she resisted the CI’s requests to obtain heroin.
¶14 While Blackshear contends that the trial court should have accepted
her testimony at face value, it found that in both her affidavit and courtroom
testimony, Blackshear was “willfully deceitful,” in part because she altered the
transcript. This finding is not clearly erroneous, as there is no evidence of any
phone calls between Blackshear and the CI where she resisted the CI’s request to
procure heroin. DeFilippis thus cannot have been ineffective for failing to obtain
them.
¶15 Blackshear nonetheless claims she would have insisted on going to
trial had she been made aware of an entrapment defense. Even if DeFilippis might
have urged an entrapment defense, his failure to do so was not prejudicial to her.
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No. 2019AP757-CR
As noted, the trial court found that Blackshear willfully made false representations
regarding the recorded conversations between her and the CI. Regardless if a
different fact finder could have drawn different inferences, we must accept the
reasonable inferences supporting the trial court’s decisions. See State v. Wenk,
2001 WI App 268, ¶8, 248 Wis. 2d 714, 637 N.W.2d 417.
¶16 Blackshear next seeks sentence modification, claiming that the trial
court unreasonably denied her eligibility for the earned release program (ERP),
despite that the DOC found her “suitable.” We disagree.
¶17 “The standard of review of a motion for sentence modification is
whether the sentencing court erroneously exercised its discretion.” State v.
Schreiber, 2002 WI App 75, ¶7, 251 Wis. 2d 690, 642 N.W.2d 621. “A
discretionary decision will be affirmed if it is made based upon the facts of record
and in reliance on the appropriate law.” State v. Owens, 2006 WI App 75, ¶7, 291
Wis. 2d 229, 713 N.W.2d 187. When imposing a bifurcated sentence, “the court
shall, as part of the exercise of its sentencing discretion, decide whether the person
being sentenced is eligible or ineligible to participate in the earned release
program ….” WIS. STAT. § 973.01(3g) (2017-18).2 “There is a strong public
policy against interfering with the trial court’s sentencing discretion and [a
reviewing court] must assume that the sentencing decision was reasonable.”
Schreiber, 251 Wis. 2d 690, ¶7. This court will search the record to determine
whether the imposed sentence can be sustained. See State v. Odom, 2006 WI App
145, ¶8, 294 Wis. 2d 844, 720 N.W.2d 695. Accordingly, “[a]n erroneous
2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
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No. 2019AP757-CR
exercise of discretion will be found only if the sentence is excessive, unusual, and
so disproportionate to the offense committed as to shock public sentiment and
violate the judgment of reasonable people concerning what is right and proper
under the circumstances.” Schreiber, 251 Wis. 2d 690, ¶7.
¶18 “When making a sentencing determination, a court must consider the
protection of the public, the gravity of the offense, and the rehabilitative needs of
the defendant, as well as any appropriate mitigating or aggravating factors.” State
v. Gayton, 2016 WI 58, ¶22, 370 Wis. 2d 264, 882 N.W.2d 459. “The sentencing
court … must be permitted to consider any and all information that reasonably
might bear on the proper sentence for the particular defendant, given the crime
committed.” State v. Guzman, 166 Wis. 2d 577, 591, 480 N.W.2d 446 (1992)
(citation omitted).
¶19 While a trial court must state whether the defendant is or is not
eligible for ERP, it is not required to make “completely separate findings” as long
as “the overall sentencing rationale also justifies” its eligibility determination.
Owens, 291 Wis. 2d 229, ¶9. Here, the trial court more than adequately explained
the factors underlying its sentencing decision, including the seriousness of the
crime, Blackshear’s extensive criminal history, her inability to follow through with
treatment, and the need to protect the public. See id., ¶10. It deemed Blackshear’s
participation in the heroin trade to be a significant offense and that the primary
aim of her sentence was to deter her and others from participating in the heroin
trade. It thus concluded that a “stern sentence” was appropriate, as early release
would undermine the message of deterrence. The court rejected Blackshear’s
claim that she was a mere “middleman,” instead characterizing her role as a
participant in a “death dealing business.”
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No. 2019AP757-CR
¶20 The court’s findings are not clearly erroneous and we see no
erroneous exercise of sentencing discretion.
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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