State v. Jason M. Graham ( 2021 )

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.
April 6, 2021
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. 2018AP2367-CR Cir. Ct. No. 2012CF232
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
JASON M. GRAHAM,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, 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. Jason Graham appeals an order denying his
postconviction motion to withdraw his February 2013 no-contest pleas to several
No. 2018AP2367-CR
child sex crimes. Graham argues that his pleas were not knowingly, voluntarily
and intelligently entered because the circuit court failed to advise him of the
elements of “sexual contact” prior to the entry of his plea to a child enticement
charge. He further argues that his attorney provided ineffective assistance
by: (1) failing to inform him of the definition of “sexual contact” as it applied to
his child enticement charge; (2) failing to investigate and advise him on the
defense of entrapment; and (3) misrepresenting to him the strength of the State’s
case based on supposed DNA evidence that did not, in fact, exist. We affirm.
BACKGROUND
¶2 On February 25, 2013, Graham entered his no-contest plea to a count
of child enticement with the intent to commit sexual contact or sexual intercourse,
contrary to WIS. STAT. § 948.07(1) (2019-20),1 resulting from his attempt to meet
a fifteen-year-old girl with whom he had been talking online. The purported
fifteen-year-old girl was actually a police officer conducting a sting operation, and
Graham was subsequently arrested. Pursuant to a plea agreement, Graham also
pleaded no contest to two other sexual assault charges from another case, as well
as to a charge of bail jumping from a separate case. A charge of using a computer
to facilitate a child sex crime was dismissed and read in.2 The State further agreed
to make a sentencing recommendation of ninety days’ jail on each of the sexual
assault charges, and five years’ probation with nine months’ conditional jail time
on the child enticement charge. Prior to accepting Graham’s pleas, the circuit
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
As part of Graham’s plea, he also agreed to have two uncharged offenses—
fourth-degree sexual assault and bail jumping—read in at sentencing.
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No. 2018AP2367-CR
court confirmed that Graham had reviewed the elements of each of the offenses to
which he was pleading with his trial counsel, Lawrence Vesely, that he understood
those elements and the constitutional rights he was waiving by pleading no
contest, and that he had initialed the jury instructions and waiver of rights form
attached to the plea questionnaire.
¶3 The circuit court sentenced Graham to five years’ initial confinement
and six years’ extended supervision for the child enticement charge. It also
imposed sentences of five years’ initial confinement and six years’ extended
supervision for the charge of second-degree sexual assault, nine months’ jail for
the charge of sexual intercourse with a child age sixteen or older, and two years’
initial confinement and three years’ extended supervision on the bail jumping
charge. All of Graham’s sentences were ordered to run concurrently.
¶4 In May 2014, Graham filed a pro se postconviction motion seeking
to withdraw his no-contest pleas to each of the three counts. Graham claimed that
Vesely provided ineffective assistance by incorrectly informing him that the State
had DNA evidence in relation to Graham’s charges of second-degree sexual
assault and sexual intercourse with a child age sixteen or older. Graham also
argued, among other things, that Vesely was ineffective for failing to inform him
of the definition of “sexual contact” as that term was used in the child enticement
statute, and for failing to raise the defense of entrapment to that same charge.
¶5 The circuit court held an evidentiary hearing on Graham’s motion,
limiting it to a review of whether Vesely was ineffective as to the DNA evidence
issue and for failing to inform Graham of the definition of “sexual contact” as used
in the charge of child enticement. On the DNA issue, the court found Vesely’s
testimony to be more credible than Graham’s. In particular, the court accepted
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No. 2018AP2367-CR
Vesely’s testimony that he had discussed the potential existence of DNA evidence
with Graham, but that their conversations focused primarily on the multitude of
charges against Graham and the favorability of the proposed plea bargain. Given
this discussion, the court concluded that Graham had not “pled solely because he
believed that the State had DNA evidence.” The court found Graham’s claim—
that Vesely had affirmatively told Graham that the State had Graham’s DNA to
use as evidence in the separate sexual assault case case—not to be credible, and
concluded that Vesely had therefore not performed deficiently on the DNA issue.
Regarding Graham’s claim that Vesely was also ineffective for failing to
investigate the DNA evidence, the court found Graham did not allege—much less
credibly so—that he would have pled differently if such an investigation had
occurred, and he had therefore failed to establish prejudice based on Vesely’s
actions.
¶6 As to Graham’s argument that he was not given the definition of
“sexual contact” as it applied to child enticement, the circuit court found that both
Vesely and the court had discussed the elements of child enticement with Graham
and confirmed he understood them. The court, therefore, concluded that Graham’s
plea to that charge was knowing, intelligent and voluntary. In all, the court
dismissed the entirety of Graham’s postconviction claims.
¶7 Graham filed a number of other motions and appeals over the
ensuing years, pursuant to various dismissals by Graham and extensions of time as
granted by this court. Ultimately, Graham, now represented by counsel, filed a
final postconviction motion, arguing that his no-contest plea should be withdrawn
because: (1) the circuit court did not inform Graham of the statutory definition of
“sexual contact” as it pertained to his child enticement charge; (2) Vesely provided
ineffective assistance by failing to inform Graham of this definition; (3) Graham
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No. 2018AP2367-CR
was not informed that his plea could result in him being subject to commitment as
a sexually violent person;3 and (4) Vesely was ineffective for failing to inform
Graham of the availability of an entrapment defense.4
¶8 The circuit court held an evidentiary hearing on this final motion and
denied Graham’s claims. Although the court first explained that it believed
Graham’s claims were procedurally barred under WIS. STAT. § 974.06, it stated
that it would deny Graham’s claims even on their merits, finding that Vesely had
not been constitutionally ineffective in his representation. The court limited its
review to the new issue on appeal—whether Vesely was ineffective for failing to
inform Graham of a potential entrapment defense, or for failing to obtain from the
State a copy of Graham’s emails with the police officer.
¶9 In particular, the circuit court found Vesely to be a credible witness,
and it deemed his strategic decision not to pursue an entrapment defense as
objectively reasonable, given its low likelihood of success. The court recounted
that, based on the “enormity” of the charges against Graham, Vesely had informed
Graham of the lengthy prison sentence that Graham was facing and discussed with
him the potential advantages of accepting the State’s plea offer. The court also
alluded to Vesely’s testimony that he did actually discuss the defense of
entrapment with Graham before his plea hearing.
3
Graham later abandoned this claim, and it is not at issue in this appeal.
4
Graham did not raise again in this final postconviction motion the DNA-evidence issue
from his earlier motion activity. For the reasons stated below, we are treating this appeal as
Graham’s direct, consolidated appeal, such that the DNA-evidence issue is properly before this
court pursuant to WIS. STAT. RULE 809.10(4). See infra ¶12.
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No. 2018AP2367-CR
¶10 In contrast to Vesely, the circuit court again found Graham not to be
credible. It based this determination on a number of “self[-]serving” and
unbelievable comments that Graham made during the evidentiary hearing,
including Graham’s claim that he had only showed up to the meeting that led to
his arrest “to prove that [the fifteen-year-old girl] was a cop.” The court found
that Vesely did not perform deficiently by electing not to pursue an entrapment
defense. It further concluded that Graham was not prejudiced by this decision
because the facts demonstrated that Graham was a willing participant to the crimes
he was charged with and entrapment would not have been a successful defense.
Additionally, the court concluded that Vesely did not perform deficiently by
failing to obtain a copy of every email sent between Graham and the officer
conducting the sting operation, because the relevant contents were detailed in the
criminal complaint and police reports. Graham now appeals.
DISCUSSION
¶11 As an initial matter, the State contends that Graham is procedurally
barred from raising the issues in this appeal. Whether a defendant’s claims are
procedurally barred is a question of law that this court reviews de novo. State v.
Tolefree, 209 Wis. 2d 421, 424, 563 N.W.2d 175 (Ct. App. 1997).
¶12 Although the circuit court’s decision rejecting Graham’s initial
claims was issued more than four years before his notice of appeal, Graham
correctly notes that the extensions of time granted by this court to file amended
postconviction motions or a notice of appeal effectively authorized his right to
appeal that initial decision even at this later date. At no time did Graham’s right to
a direct appeal lapse, as this court consistently extended Graham’s time to file his
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No. 2018AP2367-CR
direct appeal of all the issues in his case. Accordingly, we conclude this appeal
was timely filed, and we proceed to address Graham’s arguments on their merits.
¶13 Graham first argues that the definition of “sexual contact” was not
included with his plea questionnaire for the charge of child enticement, and that
neither the circuit court nor Vesely discussed that definition with him before he
pled. Graham argues that these failures rendered his no-contest plea to the child
enticement charge unknowing, involuntary and unintelligent, and he asserts that if
he had been aware of the definition, he never would have pled no contest.5
¶14 Although a defendant’s failure to understand the elements of the
crimes to which he or she has pled can be the basis for withdrawing a plea,
Graham was not required to understand the meaning of “sexual contact” because
the definition of that term is not an element of the crime of child enticement. To
explain, our supreme court recently held that a defendant does not need to
understand the definition of the term “sexual contact” in order to enter a valid
guilty plea to a charge of child enticement. State v. Hendricks, 2018 WI 15, ¶21,
379 Wis. 2d 549, 906 N.W.2d 666. The court explained that an act of sexual
contact is one mode of committing child enticement and is not an element of the
crime itself; therefore, not knowing the definition of “sexual contact” does not
cause a plea to be defective. Id. Graham does not even address Hendricks in his
5
Graham further alleges that the circuit court did not give him a proper hearing on this
issue at his evidentiary hearing because he inadvertently raised the argument in relation to the
incorrect case. We do not discern this point as an independent issue on appeal, and the record
reflects that although Graham’s argument did cause the court some confusion, after a colloquy
between the court and Graham’s attorney, the court ultimately determined Graham had reviewed
the elements of the claim with his attorney, and that the evidence in the hearing supported that
conclusion. Accordingly, the circuit court fulfilled it obligation under State v. Bangert, 131
Wis. 2d 246, 389 N.W.2d 12 (1986), in holding an evidentiary hearing on Graham’s claim.
7
No. 2018AP2367-CR
briefs to this court, and Graham’s claims in this respect plainly have no merit. In
other words, even assuming Graham’s allegations are correct that he was not given
and did not understand the definition of “sexual contact,” the absence of that
knowledge does not, as a matter of law, render his plea invalid as to child
enticement.
¶15 Furthermore, the record is clear that Graham’s plea was otherwise
proper and informed. To ensure that a defendant has understood the nature of a
charge—a key factor in ensuring that a plea is made knowingly, intelligently and
voluntarily—a circuit court may employ one or any combination of three methods.
State v. Bangert, 131 Wis. 2d 246, 268, 389 N.W.2d 12 (1986). It
must: (1) summarize the elements of the crime by reading from the jury
instructions or applicable statute; (2) ask defense counsel whether he or she
explained the charge to the defendant, and have counsel summarize that
explanation; or (3) expressly refer to the record or other evidence of the
defendant’s knowledge of the nature of the charge established prior to the plea
hearing. Id.¶16 When asked at the plea hearing, Graham told the circuit court that he
understood the elements of the charges against him and confirmed that he had read
and initialed the plea questionnaires, demonstrating that he understood the
elements of the charge of child enticement. Moreover, the court found that Vesely
had discussed with Graham the elements of child enticement before the plea
colloquy, further informing Graham of the nature of that crime. Graham was
presented with the requisite information regarding the charges against him on
several occasions, and each time he confirmed that he understood that information.
The record shows that Graham understood the charges against him, and he may
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No. 2018AP2367-CR
not withdraw his no-contest pleas due to any alleged failure regarding his
understanding of the term “sexual contact.”
¶17 Graham next claims that Vesely was ineffective in his representation
on several bases. An ineffective assistance of counsel claim presents a mixed
question of fact and law. State v. Pitsch, 124 Wis. 2d 628, 633-34, 369 N.W.2d
711 (1985). To establish a claim of ineffective assistance, a defendant must prove
two elements: (1) deficient performance by counsel; and (2) prejudice resulting
from that deficient performance. See State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We will uphold the circuit court’s factual findings
regarding what actions counsel took and the reasons for them unless they are
clearly erroneous. See State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805
N.W.2d 334. However, whether those facts fulfill the legal standard for
constitutionally ineffective assistance is a question of law that we review
independently. Pitsch, 124 Wis. 2d at 634. We need not address both elements of
the ineffective assistance test if the defendant fails to make a sufficient showing on
one of them. State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660
N.W.2d 12.
¶18 First, Graham asserts that Vesely was ineffective for failing to
explain the definition of “sexual contact” to Graham on the charge of child
enticement. We disagree. Again, Hendricks holds that the definition of “sexual
contact,” being only a mode of committing the subject crime, is not required
knowledge for a defendant to make a valid plea to the charge of child enticement.
Hendricks, 379 Wis. 2d 549, ¶21. Because Vesely carefully discussed the actual
elements of the crime with Graham, he cannot be deficient for failing to discuss a
definition that was ultimately unnecessary to Graham’s understanding of his plea.
Graham has provided no counter or qualification to Hendricks or to Vesely’s
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No. 2018AP2367-CR
actions that show that they were deficient, and we need not address prejudice on
this issue. See Swinson, 261 Wis. 2d 633, ¶58.
¶19 Graham next argues that Vesely was ineffective for failing to obtain
copies of his email conversations with the police officer posing as an underage
girl, and for not informing Graham of the defense of entrapment. As to the latter
issue, Graham claims that were he aware of such a defense, he would not have
pled no contest. In addressing Graham’s ineffective assistance claims we note that
attorneys are given wide discretion in the use of their professional judgment in
creating a legal strategy, and there is a “strong presumption” that their conduct is
reasonable.” See Strickland, 466 U.S. at 689-90.
¶20 Vesely’s failure to obtain Graham’s emails in considering a potential
entrapment defense did not amount to deficient performance. Although Vesely
did not look directly at the email conversations between Graham and the officer,
he reviewed both the police reports and the summaries of Graham’s conversations
obtained in discovery in order to evaluate whether an entrapment defense might be
successful. An attorney is not required to review every piece of evidence in order
to determine whether a strategy or defense would be applicable, and those
decisions can still be reasonable after a less than complete investigation of the law
and facts. State v. Carter, 2010 WI 40, ¶23, 324 Wis. 2d 640, 782 N.W.2d 695.
¶21 Although not mentioned by either party in their briefs, the circuit
court’s ruling on Graham’s final motion points to Vesely’s testimony that he had,
in fact, discussed the defense of entrapment with Graham prior to his plea hearing.
The court found this testimony to be credible, and the court further found credible
Vesely’s testimony that his decision not to pursue the defense was primarily based
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No. 2018AP2367-CR
on the totality of the charges facing Graham and the attractive nature of the plea
deal.
¶22 Under most circumstances, the existence of the circuit court’s factual
finding that Vesely discussed an entrapment defense with Graham before his plea
hearing would be the end of our analysis of this particular ineffectiveness
argument. We must accept the circuit court’s assessment of the credibility of a
witness unless we can conclude that a witness was credible or incredible as a
matter of law. Schultz v. Sykes, 2001 WI App 255, ¶32, 248 Wis. 2d 746, 638
N.W.2d 604. However, because these findings were not raised or developed by
either party in their briefs (most notably the State), we elect to address whether
Graham suffered prejudice while assuming that a discussion between Vesely and
Graham regarding the merits of an entrapment defense never happened.
¶23 Graham was not prejudiced even if Vesely declined to discuss an
entrapment defense with him. To show that he was prejudiced, Graham has the
burden to show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” See
Strickland, 466 U.S. at 694. Because he is challenging a no-contest plea, Graham
would need to show a reasonable probability that he would have insisted on going
to trial if not for his counsel’s error. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Although courts consider multiple factors, when a defendant claims that counsel
failed to advise him or her of an affirmative defense, “the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense likely
would have succeeded at trial.” Id. at 371. Other important considerations
include “the relative consequences of a conviction after trial and by plea,” and the
benefits involved in the plea offer. Lee v. United States, 137 S. Ct. 1958, 1966
(2017).
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No. 2018AP2367-CR
¶24 Here, the circuit court deemed Vesely’s decision not to pursue an
entrapment defense as being “strategic,” “well-reasoned and based on professional
judgment.” For several reasons, we agree. First, it is clear that an entrapment
defense would not likely have succeeded at trial. Successfully arguing entrapment
would have required Graham to prove that the law enforcement officer induced
him through “excessive incitement, urging, persuasion, or temptation.” See State
v. Hilleshiem, 172 Wis. 2d 1, 9, 492 N.W.2d 381 (Ct. App. 1992). If that bar were
met, the government would then have the burden to prove beyond a reasonable
doubt that the defendant was predisposed to commit the crime. Id. at 474.
¶25 Graham’s conversations do not reveal excessive police action aimed
at inciting Graham to act. Instead, they reveal that Graham placed an
advertisement online and followed up continuously with someone whom he
thought was a fifteen-year-old girl, asking for pictures, discussing her sexual
history and underwear size, and trying to meet with her. Although Graham argues
that the officer consistently introduced sex into the conversation, it was Graham
who initiated a meetup with an underage girl for sexual purposes, and who
communicated with her about sexual topics. The circuit court found that
Graham’s argument that he went to the meeting only to prove that the girl was
actually a cop was incredible, and Graham fails to show that finding is clearly
erroneous. Moreover, Graham was charged with additional counts of engaging in
sexual intercourse with underage girls while the case was pending. The court held
this fact could reasonably be a basis for the State’s argument that Graham was
predisposed to this type of behavior. As the record ably shows that an entrapment
defense was not likely to succeed at trial, Vesely’s decision not to pursue an
entrapment defense was reasonable and not deficient.
12
No. 2018AP2367-CR
¶26 Second, Graham has not shown that there is a reasonable probability
he would have proceeded to trial if Vesely had presented a potential entrapment
defense to him. The circuit court found Graham’s testimony on the issue of
entrapment generally to be incredible given the “self[-]serving” nature of his
comments. This determination renders unlikely Graham’s unsupported statements
that he would have proceeded to trial, especially with such an advantageous plea
deal on the table. Graham needed to support his allegations with “objective
factual assertions” to show that he would have pleaded differently but for the
alleged deficient performance. See State v. Hampton, 2004 WI 107, ¶60, 274
Wis. 2d 379, 683 N.W.2d 14.
¶27 Graham makes no argument in this regard, and he points to no facts
supporting this conclusion. Although it is, admittedly, difficult to assert how one
would have reacted to a defense that was not presented to him, Graham provides
no other facts that might solidify his argument—e.g., conversations that he was
committed to pursuing any defense no matter how unlikely, or that he was
indecisive and asking his attorney for all possible affirmative defenses even with
the advantageous plea deal in front of him. Graham makes no argument
suggesting that Vesely’s discussing an entrapment defense—one he certainly
would have prefaced as being unlikely to succeed—would have caused Graham to
go to trial. Rather, Vesely testified that the totality of the charges against Graham
led him to recommend the plea deal, irrespective of any possible entrapment
defense. In short, it is very unlikely Graham would have opted for an ill-fitting
affirmative defense and risk losing his plea deal, especially with the severity of the
charges against him, and he cannot meet his burden of showing otherwise, such
that he was prejudiced.
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No. 2018AP2367-CR
¶28 Finally, Graham argues Vesely was ineffective for failing to
investigate the laboratory report containing the DNA analysis relating to the
charges of second-degree sexual assault and sexual intercourse with a child age
sixteen or older, and for subsequently telling Graham, “It’s not good, they have
DNA evidence against you,” when no such evidence existed. We disagree.
¶29 Vesely testified he did not tell Graham that there was DNA evidence
against him, only that there was a potential for DNA evidence among the multiple
charges. The circuit court, accordingly, determined that Graham was not credible
in his claim that Vesely had told him that the State had his DNA. It also found
incredible Graham’s claim that he would not have entered no-contest pleas if he
had properly understood the relative strength of the State’s DNA evidence. To the
contrary, the court credited Vesely’s testimony that the plea decision was based on
a number of factors, including the number and nature of the charges against
Graham and the reasonableness of the plea offer. The number of charges that
Graham faced, coupled with an advantageous plea agreement, make it unlikely
that Graham would not have pled no contest, even if Vesely had addressed or
investigated the existence of DNA evidence in the manner Graham prefers.
Graham has failed to prove he was prejudiced by Vesely’s decision.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
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