State v. Lamont Donnell Sholar ( 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.
June 8, 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. 2019AP1715-CR Cir. Ct. No. 2013CF210
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
LAMONT DONNELL SHOLAR,
DEFENDANT-APPELLANT.
APPEAL from a judgment and orders of the circuit court for
Milwaukee County: JONATHAN D. WATTS, MICHELLE ACKERMAN
HAVAS, and T. CHRISTOPHER DEE, Judges. Affirmed.
Before Dugan, White and Graham, 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. 2019AP1715-CR
¶1 PER CURIAM. Lamont Donnell Sholar appeals from two orders
denying his motions for postconviction relief and his judgment of conviction for
one count of armed robbery by use of force as a party to a crime, contrary to WIS.
STAT. §§ 943.32(1)(a) and (2), 939.50(3)(c), 939.05 (2019-20),1 and one count of
burglary “while unarmed, but armed himself with a dangerous weapon while in
the burglarized enclosure,” contrary to WIS. STAT. §§ 943.10(2)(b), 939.50(3)(e),
939.05. Sholar argues that under Carpenter v. United States, 138 S. Ct. 2206
(2018), the police searched his cell site location information (CSLI) in violation of
the Fourth Amendment because the police obtained the data by subpoena and not a
warrant. Additionally, Sholar argues that the prosecutor engaged in misconduct
regarding his co-actor’s plea agreement, that his co-actor’s reduced prison
sentence constitutes newly discovered evidence, and that trial counsel provided
ineffective assistance of counsel. We reject all arguments and affirm.
BACKGROUND
¶2 The State filed a criminal complaint that alleged that Sholar and co-
defendant Mario James committed an armed robbery and burglary on October 27,
2010.2 On that date, Village of Greendale Police Department officers were
dispatched to an apartment where the resident, J.W., provided a statement that two
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
The criminal complaint was filed in January 2013. Sholar, James, and Anthony
Santiago originally had been charged in November 2010. In September 2011, the Honorable
Charles F. Kahn, Jr. granted Sholar’s motion to suppress his statements to police and the State’s
motion to dismiss the charges against Sholar without prejudice. After Santiago entered a guilty
plea in April 2012, he was debriefed by the Milwaukee Police Department in June 2012.
Santiago agreed to testify against Sholar and James and the State proceeded on the instant
complaint.
2
No. 2019AP1715-CR
men—a black man that the State later alleged was James and a white or Hispanic
man, whom Anthony Santiago later admitted was him—forced their way into his
apartment with a gun, forced J.W. into the kitchen, and threw him to the ground.
J.W. had his hands tied behind his back with zip ties and duct tape was put over
his mouth and around his ankles. Santiago rummaged around the apartment
asking where he kept the guns and money. According to J.W., Santiago spoke
with a third individual by telephone, whom Santiago later alleged was Sholar, and
then the men left the apartment with J.W.’s belongings. J.W. was able to free
himself and called police. J.W. reported stolen in the robbery: a .380 caliber
handgun, a nine-millimeter handgun, a bolt-action rifle, a 12-gauge shotgun, an
AR-15 rifle with attached grenade launcher, a “holster, flare, utility knife, … range
bag with ammunition, clips,” gaming equipment, a money clip, $200-$300 in cash,
two bank cards in his name, and J.W.’s Wisconsin photo ID.¶3 Later on October 27, 2010, City of Milwaukee Police Department
officers went to Santiago’s residence to investigate reports of firearms being
stored and sold there. Santiago was at the residence when the police arrived and
the officers confirmed his identity by paperwork in his name which was found in a
bedroom. The police recovered six firearms from the residence, including one that
matched the AR-15 rifle stolen from J.W.’s apartment earlier that day. The police
also recovered a firearm bag containing ammunition and firearm accessories that
matched the description of the bag stolen from J.W.’s apartment, as well as J.W.’s
Wisconsin photo ID, two bank cards in his name, and a black holster.
¶4 In August 2013, Sholar filed a motion to suppress all evidence
discovered in the search of his residence on October 28, 2010, including but not
3
No. 2019AP1715-CR
limited to his cell phone.3 The trial court4 denied the motion, concluding that “the
police [had] probable cause to believe the defendant was involved in a crime” and
that the court found no problem with the police “entry, the arrest, the seizure of the
cell phone, or any of the issues that are connected with the defendant’s motion.”
¶5 The case proceeded to a jury trial in October 2013. Here, we recite
the testimony relevant to this appeal. The State called J.W., who identified Sholar
in the courtroom. J.W. and Sholar had been employed at a Domino’s Pizza
location at the same time. J.W. testified to the events of the robbery. Santiago
knocked on his door three times. The first time Santiago claimed he was looking
for someone; the second time J.W. noticed that Santiago was wearing purple latex
gloves, which prompted J.W. to retrieve one of his firearms. J.W. testified that the
third time Santiago knocked, he opened the door, another man5 carrying a handgun
pushed his way in and pushed him into the kitchen. J.W. “fell backward” and the
man with the gun was “standing above” him, pointing the gun at him. The men
yelled at him to turn over, and despite trying to keep his firearm inside his hoodie,
the “guy with the purple latex gloves pulled [his] arms from underneath [him] and
the gun came out.” Then, one of the men zip-tied his hands behind his back and
the other duct taped his legs together, forcing him to look down at the floor while
on his stomach. Before his mouth was duct taped shut, the men asked where his
3
Also, in August 2013, Sholar filed a motion, pro se, to dismiss the action for
constitutional violations and violations of the prompt disposition statute. Because this motion is
not relevant to his appeal, we do not address it.
4
The Honorable Jonathan D. Watts presided over Sholar’s trial and sentencing; we refer
to him as the trial court. Judge Watts also presided over Santiago’s sentencing.
5
J.W. did not identify James in the courtroom; however, the State alleged James was the
second man. J.W. testified that he described the second man with the silver handgun as a “short
man,” who was “wearing leather gloves” and a “black jacket.”
4
No. 2019AP1715-CR
money was. He overheard one of the men make a phone call and say, “Come get
us or — something like that.” He heard them search the apartment and then
gathering things before they pushed him out of the way and left.
¶6 The State called Santiago, who testified that he told his friend,
James, that he was risking eviction and needed $300 quickly. James and Sholar
picked up Santiago and the three of them discussed a plan in which they would rob
someone. Santiago’s role was to try to get into the house because Sholar knew the
proposed victim as “he used to work with him, and his brother currently worked
with him.” Santiago did not know much about J.W. other than he worked at a
pizza place and one of the defendants “in the car was saying how the victim was
showing pictures at work of the guns he bought.” The three men drove to a
Burger King on the north side of Milwaukee, where Sholar’s brother gave him a
small .22 caliber handgun, and then Sholar drove the three of them to the robbery
location. Santiago then noticed a folder in the back seat of the car; he thought that
people answer doors for process servers and he “could use the folder to look … a
little more professional, get somebody to open the door up.”
¶7 Santiago testified that he approached the J.W.’s apartment multiple
times. The first time, he left the car alone and “scope[d] it” by walking by and
glancing through the window of the house to see if anyone was moving around
inside. The second time, he and James went to the door of the apartment; James
was armed with the .22 caliber handgun and out of sight of the doorway. Santiago
knocked, J.W. opened the door with the chain lock, and Santiago asked for
someone named “Adam.” J.W. said he was alone and there was no one named
Adam there. Santiago and James walked away and walked around for a bit.
5
No. 2019AP1715-CR
¶8 Santiago testified that the third time Santiago and James returned to
the apartment, he was still carrying the folder, some latex gloves from the car, and
zip ties, while James had the handgun. Santiago “knocked on the door again.
[J.W.] didn’t open the door. He just talked through the door.” Santiago claimed
he had a picture of the person he was looking for, and wanted to show it to him.
J.W. opened the door, James went in, grabbed him by the shirt, put the gun in his
face, walked him back and put him on the floor in the kitchen. Santiago and
James zip-tied J.W.’s hands and duct taped his mouth. When they put him on the
floor, the gun that J.W. was holding fell on the floor; Santiago kicked it away and
they took the gun with them in the robbery.
¶9 Santiago testified that after J.W. was securely positioned face-down
on the floor so he could not see what was going on, Santiago called Sholar on his
cell phone. He opened the kitchen door to allow Sholar to enter. Santiago stayed
in the kitchen watching J.W. while the other men searched the apartment. Sholar
and James removed guns, gun cases, and gun accessories from the apartment and
then all three of them left.
¶10 Santiago testified that the three of them drove back to Santiago’s
residence. They parked the car in the alley, then they “decided to chill for a little
bit.” Then they “went upstairs, chilled for a second, not too long, then went down
and started bringing things upstairs.” They “grab[bed] everything, took it upstairs
to see what was there.” Santiago recalled that these guns were taken in the
robbery: an “AR-15 with a grenade launcher, a 30.06, a single bolt-action rifle,” a
pump-action shotgun with a pistol grip, a “[nine]-millimeter with the laser [sight,]
… the gun that the victim had on the floor … a .380 or .38 … and … the .22” they
brought with them. James and Sholar then left with all of the guns except the AR-
6
No. 2019AP1715-CR
15 with the grenade launcher and one of the gun bags, which stayed at Santiago’s
house.
¶11 Santiago testified that later that day at around 6:00 p.m., Milwaukee
Police Department officers took him into custody and recovered J.W.’s bank
cards, photo ID, the AR-15 rifle, as well as five additional weapons. Santiago
gave an initial statement to police at his residence after he was arrested claiming
that Sholar and James called him and told him they were going to drop off some
guns.
¶12 Santiago testified that “the first statements [he] gave were bull crap.”
However he testified that, after he was arrested and taken to the police station, he
continued with the false story, but the officer questioning him tried to calm him
and kept telling him to tell the truth. The officer informed him that the police
found the victim’s ID in the search of Santiago’s house. The Milwaukee Police
called J.W., who explained he had been robbed that day and had filed a police
report with the Greendale Police Department. Santiago decided to be truthful with
the police because he had a record and J.W. had seen his face. Santiago gave a
second statement, briefly outlining what happened in the robbery. Santiago was
charged with armed robbery, burglary, and six counts of being a felon in
possession of a firearm.
¶13 On cross-examination, Sholar’s trial counsel and James’s attorney
questioned Santiago about inconsistencies in his testimony compared to his police
statements including: where he got the latex gloves and whether his co-
conspirators wore them; the color of the getaway vehicle driven by Sholar; the
color of the gun Sholar picked up from his brother at Burger King; and whether
the co-conspirators discussed the possibility that J.W. might not be alone. Further,
7
No. 2019AP1715-CR
Santiago testified that the robbery took about five minutes from when they got
J.W. to open the door until they left with the guns. Santiago testified that after the
robbery, Sholar and James stayed maybe twenty minutes to a half-hour at his
place.
¶14 Santiago testified that he pleaded guilty pursuant to a plea
arrangement with the State in April 2012. Santiago agreed to plead guilty to an
armed robbery charge and four counts of felon in possession of a firearm, and then
the burglary and two felon in possession of a firearm charges were dismissed but
read in. In return, the State offered him a sentence recommendation of thirty
years, divided as twenty years of initial confinement and ten years of extended
supervision.6 The State clarified that Santiago agreed to testify, but he did not
have an agreement with the State in exchange for his testimony. Santiago testified
that he hoped to get a “lighter sentence” but the State had not made any promises.
Santiago testified that after his guilty pleas were accepted, he gave a third
statement, a debriefing interview, to police on June 12, 2012.
¶15 The State called a Milwaukee Police Department officer who
analyzed Sholar’s cell phone CSLI. The officer testified that he obtained records
by subpoena for the phone number that had a billing name of Lamont Sholar and a
billing address that matched Sholar’s address. The call records included data from
October 26 through October 28, 2010. The officer testified that he did an in-depth
6
Santiago’s testimony showed that he understood that his maximum exposure for prison
was much higher. For the armed robbery charge, the maximum sentence was forty years,
bifurcated as twenty-five years of initial confinement and fifteen years of extended supervision.
Each possession charge carried a maximum penalty of ten years, evenly divided between initial
confinement and extended supervision.
8
No. 2019AP1715-CR
analysis for the call records from 1:45 p.m. until about 3:00 p.m. on October 27,
2010, which matched the time frame reported in the robbery investigation.
¶16 The officer testified that the forensic examination of Sholar’s phone
showed that there were two phone numbers associated with James saved to
Sholar’s contact list; that there were a number of incoming and outgoing calls
from Sholar’s phone number to Santiago’s phone number; and that several calls
had been deleted from Sholar’s call log.7 The officer testified that he analyzed the
originating cell location and the terminating cell location for the calls in the phone
records for Sholar and Santiago’s respective phones during the time surrounding
the robbery.
¶17 The officer testified that the records showed there were six calls
between 1:51 p.m. and 2:08 p.m. on Santiago’s phone records and there were
fourteen calls between 1:41 p.m. and 2:47 p.m. on Sholar’s phone records. The
officer’s analysis showed that for the calls from 1:42 p.m. through 2:08 p.m.
Santiago’s calls connected to a single Sprint cell tower and Sholar’s calls
connected to a single U.S. Cellular cell tower. The officer explained that “when
you see all of the calls taking place on the same tower and the same sector” and
not switching over to another antenna “it means that the signal from the tower is
pretty strong” and a search for the call location would start much closer to that
7
The officer testified about the following calls deleted from Sholar’s phone: Santiago
called Sholar on October 26, 2010, at 8:48 p.m., and on October 27, 2010, at 1:58 p.m., 2:07 p.m.,
4:02 p.m., and 8:13 p.m., all of which were deleted from Sholar’s phone. The officer also
identified outgoing calls from Sholar to Santiago on October 26, 2010, at 9:40 p.m., and on
October 27, 2010, at 11:35 a.m., both of which were deleted from Sholar’s phone. Further, the
officer identified six outgoing calls from Sholar to Santiago on October 27, 2010, from 1:42 p.m.
to 1:53 p.m., all of which were deleted. Then the officer testified that Sholar called Santiago at
2:08 p.m., a call that lasted more than eight minutes and was also deleted.
9
No. 2019AP1715-CR
tower as opposed to the edges of the coverage area. The officer mapped out the
cell tower locations and, using maps shown to the jury, presented the geographic
range of the cell towers where Santiago and Sholar’s phones connected to cell
towers and the likely vicinity from where the calls were made. The location
included the area of J.W.’s apartment in Greendale.
¶18 The jury returned guilty verdicts against Sholar and James for the
counts charged in the information: one count of armed robbery as a party to a
crime against each of them and one count of burglary as a party to a crime, in
which “the defendant arm[ed] himself with a dangerous weapon while in the
enclosure” against each of them. The trial court ordered judgments of conviction
in June 2014, and imposed consecutive sentences on Sholar: twenty years for the
armed robbery charge divided as fifteen years of initial confinement and five years
of extended supervision, and eight years for the burglary charge divided as five
years of initial confinement and three years of extended supervision. His
sentences were consecutive to each other and to the active sentence he had in
another case.
¶19 After sentencing, Sholar filed two motions for postconviction relief
pursuant to WIS. STAT. § 809.30.8 In Sholar’s original motion for postconviction
relief filed in September 2017, he moved the circuit court for a new trial or
alternatively an evidentiary hearing on his claims of ineffective assistance of
8
Because the timeline to this current appeal is extensive, we note that we granted at least
four extensions for the production of transcripts as well as eleven extensions of time for Sholar to
bring his original motion for postconviction relief in September 2017. Further, in December
2018, we granted Sholar’s motion to voluntarily dismiss his appeal of his original postconviction
motion. This allowed him to pursue postconviction relief after the U.S. Supreme Court addressed
CSLI in Carpenter v. United States, 138 S. Ct. 2206 (2018).
10
No. 2019AP1715-CR
counsel, prosecutorial misconduct, and newly discovered evidence. In March
2018, the circuit court9 denied Sholar’s original motion for postconviction relief.
In March 2018, he filed a notice of appeal, and in December 2018, we granted
Sholar’s motion to voluntarily dismiss his appeal of the March 2018 circuit court
order denying postconviction relief. In April 2019, Sholar filed a supplemental
motion for postconviction relief, alleging that the State obtained his CSLI in
violation of the Fourth Amendment under the reasoning in the 2018 U.S. Supreme
Court Carpenter decision. In August 2019, the circuit court10 denied his
supplemental motion. Sholar now appeals the denial of both of his postconviction
motions. Additional facts are included in the discussion.
DISCUSSION
¶20 Sholar seeks a new trial on multiple grounds. First, he argues that
the police obtained his CSLI without a warrant, contrary to the Fourth
Amendment, under Carpenter. Second, he argues that the State committed
prosecutorial misconduct by permitting Santiago to testify falsely about his plea
arrangement, thereby withholding the nature of Santiago’s cooperation and plea
agreement from the jury. Third, he contends that the State’s modified
recommendation at Santiago’s sentencing constitutes newly discovered evidence.
Fourth, he argues that he received ineffective assistance of counsel because
(1) trial counsel failed to impeach Santiago with the transcript of his plea hearing;
9
The Honorable T. Christopher Dee presided over Sholar’s original motion for
postconviction relief.
10
The Honorable Michelle Ackerman Havas presided over Sholar’s supplemental
motion for postconviction relief.
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No. 2019AP1715-CR
(2) trial counsel failed to present inconsistencies in Santiago’s statements; and
(3) trial counsel broke a promise to the jury made in his opening statement.
I. CSLI evidence
¶21 Sholar asks that this court reverse the circuit court, remand with
instructions to order the suppression of Sholar’s CSLI, and grant a new trial.
Sholar argues that the CSLI evidence was obtained without a warrant, in violation
of the Fourth Amendment. We review the circuit court’s findings of historical fact
under the clearly erroneous standard. State v. Pender, 2008 WI App 47, ¶8, 308
Wis. 2d 428, 748 N.W.2d 471. Whether suppression is required is a question of
law that we review independently. Id. We conclude that Sholar has failed to
prove a violation of his Fourth Amendment rights; therefore, suppression of the
CSLI evidence was not required.
¶22 In 2018, the U.S. Supreme Court determined that due to “the unique
nature of cell phone location records, the fact that the information is held by a
third party does not by itself overcome the user’s claim to Fourth Amendment
protection.” Carpenter, 138 S. Ct. at 2217. Therefore, the Court held that
obtaining CSLI from a cell phone service provider amounts to a search and
seizure. Id. at 2221.11 In Carpenter, the government obtained CSLI “pursuant to
a court order issued under the Stored Communications Act, which required the
Government to show ‘reasonable grounds’ for believing that the records were
‘relevant and material to an ongoing investigation.’” Id.; see also
11
Because Carpenter, 138 S. Ct. 2206, was decided during the pendency of Sholar’s
direct appeal, the State does not dispute its application. See Griffith v. Kentucky, 479 U.S. 314,
328 (1987) (holding that a new rule for the conduct of criminal prosecutions applies retroactively
to all cases pending on direct review or not yet final).
12
No. 2019AP1715-CR
18 U.S.C. § 2703(d). The Court concluded the showing under that Act fell “well
short of the probable cause required for a warrant.” Carpenter, 138 S. Ct. at 2221.
Further, “[t]he Court usually requires ‘some quantum of individualized suspicion’
before a search or seizure may take place.” Id. (citation omitted). The Court
concluded that the government “must generally obtain a warrant supported by
probable cause before acquiring such records.” Id.
¶23 Sholar argues that his case is meaningfully indistinguishable from
Carpenter; therefore, this court should order a new trial in which the CSLI
evidence is suppressed. Sholar contends that his CSLI was obtained without a
constitutionally adequate court order, specifically a warrant. The State argues that
the analysis in Carpenter concluding that a subpoena was insufficient focused on
the showing necessary to obtain the subpoena, not the instrument by which the
government obtained the CSLI.12 Here, the State obtained Sholar’s CSLI by
subpoena issued under WIS. STAT. § 968.375 (2009-10).13 To authorize the search
12
We note that Sholar does not argue that the affidavit supporting the subpoena could
not have supported a showing of probable cause for a warrant; instead, he argues that the State
did not seek a warrant.
13
The State obtained Sholar’s CSLI in 2010 on the basis of a subpoena granted under
WIS. STAT. § 968.375 (2009-10). In 2010, that statute set forth the procedure to apply for a
subpoena for records or communications of customers of an electronic communication service
was “[u]pon the request of … a district attorney and upon a showing of probable cause, a judge
may issue a subpoena requiring a person who provides electronic communication service … to
disclose … a record or other information pertaining to a subscriber … including any of the
following”: (1) subscriber’s name; (2) subscriber’s address; (3) “[l]ocal and long distance
telephone connection records, or records of session times and durations”; (4) length of service;
(5) telephone number; (6) source and means of payment. § 968.375(3)(a). A subpoena under
§ 968.375(3) “may not require disclosure of the contents of communications.” § 968.375(3)(b).
Alternately, the procedure for warrant was: “Upon the request of … a district attorney and upon a
showing of probable cause, a judge may issue a warrant requiring a person who provides
electronic communication service or remote computing service to disclose … any of the
following: []The content of a wire or electronic communication ….” and any of the records or
information listed available by subpoena. § 968.375(4).
13
No. 2019AP1715-CR
of electronic communication service records by subpoena under the 2010 version
of the statute, a judge was required to determine that probable cause existed under
procedures comparable to issuing a search warrant. Cf WIS. STAT. §§ 968.375(3),
(5) 968.12(2), (3).14 The State contends that the subpoena by which the State
obtained Sholar’s CSLI was issued based on probable cause and was issued by a
judicial officer, satisfying the demands of the Fourth Amendment and Carpenter.
¶24 In 2014, our supreme court addressed a similar challenge to a search
for CSLI. See State v. Tate, 2014 WI 89, ¶6, 357 Wis. 2d 172, 849 N.W.2d 798.
The police requested a court order to obtain subscriber and cell tower activity and
location information to track a suspect in a homicide. Id. The defendant “moved
to suppress the evidence seized pursuant to the order to track his cell phone.” Id.,
¶12. Our supreme court reviewed the three requirements for a search to comply
with the Warrant Clause of the Fourth Amendment:
(1) prior authorization by a neutral, detached magistrate;
(2) a demonstration upon oath or affirmation that there is
probable cause to believe that evidence sought will aid in a
particular conviction for a particular offense; and (3) a
particularized description of the place to be searched and
items to be seized.
14
Sholar argues that the probable cause showing for a warrant required by Carpenter
must be higher than the probable cause showing for a subpoena under WIS. STAT. § 968.375(3)
(2009-10). He asserts that § 968.375(5) merely describes that the process to get a subpoena for
electronic communication records is the same as the search warrant application procedures:
namely, by affidavit or by oral testimony. He contends that the statutory process to get a search
warrant does not differentiate the level of probable cause required to get a subpoena versus a
warrant. We decline to address this argument because it is unnecessary to resolve the issue
before us: here, the only question is whether there was a sufficient showing of probable cause to
support the search of Sholar’s CSLI. As the U.S. Supreme Court frequently has remarked,
“probable cause is a flexible, common-sense standard.” Texas v. Brown, 460 U.S. 730, 742
(1983). We generally decide issues on the narrowest possible grounds; therefore, we decline to
address any general questions with regard to levels of probable cause to support a subpoena
versus a warrant. See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (“An
appellate court should decide cases on the narrowest possible grounds.”).
14
No. 2019AP1715-CR
Id., ¶28 (quoting State v. Sveum, 2010 WI 92, ¶20, 328 Wis. 2d 369, 787 N.W.2d
317). Our supreme court concluded that the order was constitutionally sufficient
because the circuit court determined that the probable cause standard had been met
based on a police detective’s sworn affidavit, which “described sufficient facts to
support probable cause to believe that the cell phone site information law
enforcement sought would aid in ‘a particular apprehension or conviction for a
particular offense.’” Id., ¶33 (citation omitted). Therefore, under the analysis in
both Carpenter and Tate, we must consider whether the application supporting the
subpoena allowed the court to make the required determination of whether
probable cause existed. Accordingly, we review the record to determine whether
the affidavit provided a substantial basis for the court commissioner’s
determination that there was probable cause to believe that evidence of the two
crimes for which Sholar was accused—armed robbery and burglary while
armed—would be found in the CSLI. See State v. Higginbotham, 162 Wis. 2d
978, 992, 471 N.W.2d 24 (1991).
¶25 Our review of the relevant information in this record begins with the
motion for a subpoena from a Milwaukee County Assistant District Attorney that
stated that “the State believes that probable cause exists for the Court to find that
the documents named in the attached Subpoena constitutes evidence of the crime
of [a]rmed [r]obbery and [b]urglary [w]hile [a]rmed.” The State’s motion was
based on an affidavit dated November 23, 2010, from a Greendale Police
Department detective, who comprehensively outlined the investigation into the
robbery on October 27, 2010. The detective reviewed the method and timeline of
the robbery, the recovery of stolen guns and property at Santiago’s residence, the
separate arrests of Sholar and Santiago, and the search and seizure of Sholar,
Santiago, and James’s cell phones. The detective connected the known phone call
15
No. 2019AP1715-CR
logs from Sholar, Santiago, and James’s phone numbers to the other’s phones at
the times near the robbery. The detective requested that a subpoena be authorized
for Sholar’s phone records for service with U.S. Cellular, and Santiago and
James’s respective phone records for service with Sprint. The phone records
sought included subscriber information, telephone connection records, and cell site
towers, which could determine the location of these three men during the robbery
and may provide evidence necessary for the investigation and prosecution of these
crimes.
¶26 Based on the State’s motion and the detective’s affidavit, a
Milwaukee County court commissioner issued a subpoena for the records of U.S.
Cellular requesting all call detailing records, subscriber information, and cellular
tower information for Sholar’s phone during the time period October 26, 2010,
from 12:00 a.m. through October 29, 2010, at 12:00 a.m. The order stated the
court had “been shown specific and articulable facts showing probable cause
under Wisconsin Statutes section[] 968.375” (2009-10). In the order, the court
commissioner found that there was probable cause to believe that phone records
described in an accompanying subpoena constituted evidence of the crimes of
robbery while armed and burglary while armed.
¶27 When we compare the record to the three requirements to comply
with the Warrant Clause of the Fourth Amendment, we conclude that the
requirements are satisfied. First, the subpoena was issued by a Milwaukee County
court commissioner before the records were released or searched, which complies
with the requirement of prior authorization issued by a neutral, detached
magistrate. See Tate, 357 Wis. 2d 172, ¶28. Second, the court commissioner
relied upon the affidavit of the Greendale Police Department detective, which
demonstrated that there was “probable cause to believe that evidence sought will
16
No. 2019AP1715-CR
aid in a particular conviction for a particular offense.” Id. (citation omitted).
Third, the affidavit provided specific and particular descriptions of the records to
be searched. See id.; see also id., ¶41 (explaining that a cell phone electronic
serial number “satisfies the particularity requirement because that number permits
a particularized collection of cell site information for only one cell phone.”).
¶28 The Fourth Amendment requires probable cause for a reasonable
search and it is probable cause not the label of the instrument—warrant, subpoena,
court order—that determines its constitutional sufficiency. We conclude that the
showing of probable cause in the subpoena satisfied the requirements of the Fourth
Amendment and the holdings of Carpenter. Sholar has failed to prove any clearly
erroneous fact finding from the trial court. Therefore, we conclude the search of
Sholar’s CSLI was constitutionally sufficient. Accordingly, there is no basis to
suppress the CSLI evidence under the Fourth Amendment.
¶29 Sholar argues that WIS. STAT. § 968.375 (2009-10) did not allow the
State to obtain CSLI, even if the State had obtained a warrant. The State points
out that Sholar did not make a statutory challenge to the acquisition of CSLI to the
trial court and, therefore, forfeits this argument here. See State v. Ndina, 2009 WI
21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (holding that the failure to object at
trial constitutes a forfeiture of the right on appellate review). Furthermore, we
interpret Sholar as conceding this issue in his reply brief, stating, “Sholar does not
separately seek suppression based on the State’s failure to comply with the
subpoena statute[.]” He continued, “While the State’s violation of the subpoena
[statute] is not a separate basis for suppression, it is evidence of the lack of good
faith by the officers.” We note that Sholar raised the statutory challenge in his
17
No. 2019AP1715-CR
motion for postconviction relief, but his motion to suppress evidence to the trial
court did not address the statutory challenge to CSLI acquisition.15 Because we
have concluded that the subpoena was constitutionally sufficient and we do not
reach the question of whether the search was acceptable under the good faith
exception, we decline to address Sholar’s argument any further.
II. Prosecutorial misconduct
¶30 Sholar argues that the State committed prosecutorial misconduct by
permitting Santiago to testify falsely about his plea agreement in order to bolster
his credibility. Sholar contends that Santiago lied repeatedly on the stand,
claiming that there was no agreement for his testimony and that he could only
hope for a reduction in the sentencing recommendation. The State argues that
Santiago testified truthfully about his guilty pleas and the State’s recommendation.
It points out that the circuit court was not persuaded that Santiago gave false
testimony about the plea agreement. In the first postconviction decision, the
circuit court stated that it was “clear from his testimony that Santiago hoped that
15
Sholar’s motion to suppress evidence requested:
an order suppressing all evidence including but not limited to a
cell phone taken from Mr. Sholar’s home; the fruits of a
warrantless search and arrest.
AS GROUNDS for this motion, Mr. Sholar states that
Milwaukee Police officers illegally entered and searched his
residence without a warrant, without valid consent; and without
exigent circumstances, and arrested him on October 28, 2010 in
violation of his rights under the 4th, 5th, and 14th amendments
of the United States Constitution and Article I sections 7, 8, 9
and 11 of the Wisconsin Constitution. Officers seized
Mr. Sholar’s cell phone.
18
No. 2019AP1715-CR
he would receive a lesser sentencing recommendation but that he did not know
what the State’s final recommendation would be.”
¶31 When we review a claim of prosecutorial misconduct, we consider
whether “the defendant [was] denied his or her due process right to a fair trial.”
State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, (Ct. App. 1992). We
consider the entire record to determine whether prosecutorial misconduct affected
the fairness of the trial. See State v. Bvocik, 2010 WI App 49, ¶13, 324 Wis. 2d
352, 781 N.W.2d 719. Our examination of the record here does not show
misconduct by the prosecutor. We conclude Sholar’s claim is baseless.
¶32 During the trial, Santiago was extensively questioned about his plea
arrangement with the State. Over and over, Santiago expressed that he “hoped”
for a modification in the State’s sentence recommendation in his charges, but that
he understood that the State offered him twenty years of initial confinement and
ten years of extended supervision. Those were the terms under which the circuit
court16 accepted Santiago’s guilty pleas on April 30, 2012, and entered a judgment
of conviction. We recite this direct examination at trial:
[THE STATE:] And you agreed to come testify
today?
[SANTIAGO:] Yes.
[THE STATE:] What is your understanding about
any agreement about your testimony?
[SANTIAGO:] There was none.
[THE STATE:] What do you hope happens?
[SANTIAGO:] A lesser sentence....
16
The Honorable Rebecca F. Dallet accepted Santiago’s guilty pleas.
19
No. 2019AP1715-CR
[THE STATE:] You’ve not been promised that if
you come here and testify that you’re going to get a
particular sentence?
[SANTIAGO:] No.
….
[THE STATE:] Okay. Did you talk to police
officers after you pled guilty?
[SANTIAGO:] Correct.
[THE STATE:] And why did you talk to them after
pleading guilty?
[SANTIAGO:] Because the first statements I gave
were bull crap. I was nervous. I just wanted the case as far
off of me as possible, so I just kind of made up some things
at the beginning.
….
[THE STATE:] The plea agreement that you
entered into, it was your understanding that if you testify
and provide a statement to police officers that you -- that
that recommendation might change?
[SANTIAGO:] Correct.
[THE STATE:] But nothing has been promised to
you?
[SANTIAGO:] No, not at all.
[THE STATE:] You hope it changes?
[SANTIAGO:] I do hope it changes, yes.
¶33 In March 2014, after Sholar’s trial ended with guilty verdicts (but
before the trial court sentenced Sholar), Santiago faced sentencing by the trial
court on his guilty pleas. At Santiago’s hearing, the prosecutor reviewed
Santiago’s cooperation with the prosecution, his initial plea offer, his debriefing
with law enforcement, and his testimony at Sholar and James’s trial. The State
modified its recommendation to ten years, bifurcated evenly between initial
20
No. 2019AP1715-CR
confinement and extended supervision. The trial court reviewed the case on the
record and imposed concurrent sentences for all charges against Santiago for a
term of seven-and-a-half years, divided as two-and-a-half years of initial
confinement and five years of extended supervision.
¶34 The circuit court found that Santiago truthfully testified to the plea
agreement between the prosecutor and Santiago, and this determination was not
clearly erroneous. Sholar contends that the prosecutor knew Santiago’s testimony
was untrue because at Santiago’s plea hearing, Santiago’s attorney stated that the
sentence recommendation “will change.” But the record shows that the State
quickly responded that it would change if his testimony was fruitful. Sholar
further asserts that by the time of the trial, the prosecutor knew that Santiago’s
statements had been helpful enough to allow the State to refile charges against
Sholar. However, Sholar’s assertion does not prove that there had been any
changes from the previous plea agreement. Santiago’s testimony clearly stated
what the State recommended for his sentence and that there was a possibility of a
modified recommendation. Further, the record reflects that the prosecutor only
changed its recommendation from thirty to ten years at Sholar’s sentencing
hearing. It was the trial court—whom we note conducted Sholar’s trial and heard
Santiago’s testimony first-hand—who imposed an even more reduced sentence.
We conclude that there is no factual support in the record to show that Santiago
believed there was a different agreement than the one that he testified to or that he
believed he was guaranteed a sentence modification.
¶35 We conclude that the record is clear that the prosecutor did not
commit misconduct. Accordingly, we reject Sholar’s claim of prosecutorial
misconduct.
21
No. 2019AP1715-CR
III. Newly discovered evidence
¶36 Sholar argues that Santiago’s sentence constitutes newly discovered
evidence. He argues there are two parts to this evidence: first, that after Sholar
was convicted, the State reduced its recommendation for Santiago’s sentence from
thirty years to ten years, and second, that the trial court only imposed seven-and-a-
half years, with only two-and-a-half of those years in initial confinement. Sholar
argues that had the jury heard how significant a sentence reduction Santiago
received for testifying against Sholar, it would have further undermined Santiago’s
credibility.
¶37 “In order to set aside a judgment of conviction based on
newly[]discovered evidence, the newly[]discovered evidence must be sufficient to
establish that a defendant’s conviction was a ‘manifest injustice.’” State v. Plude,
2008 WI 58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42 (citation omitted). A
postconviction motion based on newly discovered evidence must establish by clear
and convincing evidence that: “(1) the evidence was discovered after conviction;
(2) the defendant was not negligent in seeking evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not merely cumulative.”
State v. Love, 2005 WI 116, ¶43, 284 Wis. 2d 111, 700 N.W.2d 62 (citation
omitted). If these factors are proven, the trial court must then determine “whether
a reasonable probability exists that a different result would be reached in a trial.”
Id., ¶44 (citation omitted). “A reasonable probability of a different outcome exists
if there is a reasonable probability that a jury, looking at both the old evidence and
the new evidence, would have a reasonable doubt as to the defendant’s guilt.”
State v. Vollbrecht, 2012 WI App 90, ¶18, 344 Wis. 2d 69, 820 N.W.2d 443. We
review the trial court’s decision to grant or deny a motion for a new trial based on
22
No. 2019AP1715-CR
newly discovered evidence under the erroneous exercise of discretion standard.
See Plude, 310 Wis. 2d 28, ¶31.
¶38 Sholar argues that Santiago’s greatly reduced sentence fulfills all
five prongs of newly discovered evidence such that a manifest injustice has taken
place, requiring a new trial. He argues (1) that Santiago was sentenced to a
dramatically reduced sentence after Sholar’s trial was complete; (2) that he was
diligent in seeking this information; (3) that the jury had concerns about
Santiago’s credibility, therefore, his motivations to testify were material to the
case; (4) that Santiago’s seven-and-a-half year sentence was not cumulative to the
testimony at trial; and (5) that a reasonable probability exists that the jury would
alter its verdict because it would have reasonable doubt about Sholar’s guilt.
¶39 The State argues that Sholar fails to satisfy the newly discovered
evidence standard because this evidence is cumulative to the testimony heard at
trial. Santiago’s testimony repeatedly made clear that he hoped for a sentence
recommendation modification as the result of his testimony. The State contends
that Santiago’s hopes for a significant reduction was even introduced during cross-
examination.
[TRIAL COUNSEL:] In the June 12th, 2012,
debrief, at the end of the – I’m going to direct you to the
end of your interview with the police. You said, “I’m
hoping I go from here to here.” Remember using that
gesture going up and going down like that?
[SANTIAGO:] I don’t remember that.
[TRIAL COUNSEL:] You don’t remember that?
Okay. You remember saying something – you remember
saying --
[SANTIAGO:] I might have said something along
the lines though.
23
No. 2019AP1715-CR
[TRIAL COUNSEL:] Something along the lines of
you’re hoping that to get it from 20 years to some very
short period of time, right?
[SANTIAGO:] Yes.
[TRIAL COUNSEL:] So you don’t want to
disappoint [the prosecutor] because she’s the one who is
going to be making that sentencing recommendation, right?
[SANTIAGO:] Yeah. But the judge ultimately has
the say so.
[TRIAL COUNSEL:] Right. Who is your Judge in
that case?
[SANTIAGO:] Judge Watts.
Furthermore, the State argues that Sholar fails to satisfy the standard because there
is no reasonable probability of a different outcome at trial if the jury heard about
Santiago’s reduced sentence and it undermined Santiago’s credibility as a witness.
The State asserts that the jury had the information to form its own opinions about
Santiago’s motivations and assess his credibility as a witness.
¶40 The record further reflects that the jury heard about Santiago’s plea
agreement and motivations because the trial court allowed the jury to ask
questions. One of the questions submitted by the jury to the court—in writing and
read by the judge—was directed at Santiago: “You said a couple of times that you
didn’t have an agreement with the State and just a few minutes ago you agreed to
having one or an agreement. Are you lying about one now or saying the truth?”
Santiago then testified:
It wasn’t that I was lying when I said we didn’t have an
agreement. Every time the lawyer said, “agreement,” I
didn’t understand what he was saying.
I was thinking the plea. When he verified he meant
plea bargain and he said agreement, yes, that was my plea
bargain when I first went to court was 20 in 10 out.
24
No. 2019AP1715-CR
I hadn’t had no other plea bargain since then. I
didn’t think of it as an agreement. I didn’t know -- When
he said agreement, I think of an agreement as she’s telling
me, okay, you do this and I’ll do that for you. That’s an
agreement. It was a plea bargain. I just heard, you’re
facing 20 in and 10 out. That’s all I heard.
Additionally, Santiago testified that there was no agreement with the State in
which the State would help him or lessen his sentence in exchange for his
testimony; Santiago reiterated that he hoped that his testimony would reduce his
eventual sentence. Ultimately, the trial court gave the jury the opportunity to
request additional information, and the jury directly questioned Santiago about his
truthfulness.
¶41 The record also reflects that the jury was aware that Santiago had not
been sentenced when he testified and that he hoped for a greatly reduced
recommendation. In effect, Sholar is arguing that the actual change in the
recommendation at the time of sentencing supports his conclusion that there was
an agreement at the time of trial. However, that is mere speculation and is
conclusory. As we concluded in the discussion above, there is no evidence in the
record that there was a different agreement between the State and Santiago.
Without a hidden agreement now revealed, Santiago’s sentence is not newly
discovered evidence. Accordingly, we conclude that Sholar fails to satisfy all of
the required prongs of the newly discovered evidence standard and this claim fails.
IV. Ineffective assistance of counsel
¶42 Sholar argues that trial counsel provided ineffective assistance in at
least three instances that were both deficient and prejudicial, which, individually
25
No. 2019AP1715-CR
or cumulatively, would compel us to order a Machner17 hearing. His first claim
relates to Santiago’s plea agreement, a different framing of his arguments above.
He contends that trial counsel failed to impeach Santiago with testimony from his
plea hearing, which Sholar argues would have shown that Santiago was promised
a reduced sentence recommendation. Second, he asserts that trial counsel failed to
impeach Santiago regarding multiple inconsistencies between his prior statements
to police and his trial testimony. Third, he argues that trial counsel promised the
jury in his opening statement that he would introduce evidence about two men
who were found with firearms stolen in the robbery at J.W.’s apartment.
However, trial counsel did not return to this topic and therefore, Sholar argues that
trial counsel harmed his own credibility and by extension, Sholar’s credibility.
We reject all three arguments.
¶43 To prove ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the defendant was
prejudiced by counsel’s performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). For the first prong, “[c]ounsel’s conduct is constitutionally deficient
if it falls below an objective standard of reasonableness.” State v. Thiel, 2003 WI
111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. For the second prong, the defendant
must show prejudice by counsel’s performance. Strickland, 466 U.S. at 687.
“The defendant must show that 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.” Id. at 694. In our analysis, we “may reverse the
17
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
26
No. 2019AP1715-CR
order of the two tests or avoid the deficient performance analysis altogether if the
defendant has failed to show prejudice” from counsel’s performance. See State v.
Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990).
A. Trial counsel’s failure to impeach Santiago’s testimony about the plea
agreement
¶44 Sholar asserts that trial counsel was ineffective for not impeaching
Santiago with the transcript of his plea hearing. As he asserts in his claim of
prosecutorial misconduct, Sholar contends that the State promised to reduce its
recommendation in exchange for Santiago’s testimony. When the circuit court
reviewed these arguments, the court found that the State did not promise or
guarantee a change in the sentencing recommendation. In its postconviction
decision, the court stated:
The defendant makes far too much of the statement made
by Santiago’s attorney at his plea hearing that the
recommendation “will change.” The full context of the
plea hearing transcript shows that a lesser recommendation
was not a promise or guarantee and that it was “subject to
change if something becomes fruitful” and that it was
“possibly subject to change.”
¶45 We agree. If trial counsel had tried to impeach Santiago with only
the plea hearing transcript in which Santiago’s attorney stated there will be a
change, then the State would have introduced the next section of the transcript,
which showed that the State did not make any promises or guarantees. Trial
counsel was not deficient for not cross-examining Santiago with the plea hearing
testimony when that testimony would have only made it clear that the State did not
promise Santiago a change in its recommendation in return for this testimony.
Furthermore, the plea hearing colloquy would have only reinforced to the jury that
the State did not promise Santiago it would change its sentencing
27
No. 2019AP1715-CR
recommendation; therefore, trial counsel’s failure to pursue this line of testimony
was not deficient. We conclude that the record conclusively demonstrates that
Sholar has failed to show that trial counsel performed deficiently in his first claim
regarding Santiago’s plea arrangement.
B. Trial counsel’s failure to impeach Santiago’s inconsistent statements
¶46 Sholar argues that trial counsel failed to impeach multiple
inconsistent statements by Santiago. Sholar contends that while trial counsel
understood that Santiago’s testimony was the most important part of the State’s
case, counsel failed to prepare to impeach Sholar either by being ready with police
reports and recordings of his police statements or by subpoenaing the officers who
were present for his statements to testify at trial. Sholar argues that without
Santiago’s testimony, the officer’s testimony about CSLI would only establish
Sholar was in the vicinity of the robbery.
¶47 Sholar argues that there were inconsistences in Santiago’s testimony
and statements about whether they wore latex gloves during the robbery and the
co-conspirators actions after the robbery when they returned to his residence with
the guns. The State argues both issues are minor inconsistences and Sholar is
unable to show that there is a reasonable probability of a different outcome at trial
if Santiago had been cross-examined more directly on either point. We agree with
the State, and note that Sholar does not refute the State’s arguments in his reply
brief. We take this lack of reply as a concession by Sholar that neither issue
prejudiced his defense. See United Coop. v. Frontier FS Coop., 2007 WI App
197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in
reply brief to an argument made in respondent’s brief may be taken as a
concession).
28
No. 2019AP1715-CR
¶48 As noted, Sholar conceded the State’s argument regarding the latex
gloves and co-conspirators actions when they returned to Santiago’s residence
with the guns. Therefore, our analysis focuses on Sholar’s claim that Santiago’s
account of Sholar’s entry to J.W.’s apartment was inconsistent. In 2010,18
Santiago told police that Sholar entered the apartment at the same time as Santiago
and James, after Santiago’s successful process server ruse. In the June 2012
police debriefing interview, Santiago told police that Sholar waited in the car until
Santiago and James entered the apartment, and James let Sholar in the back door
of the apartment. At trial, Santiago testified that Sholar waited in the car until
Santiago and James entered the apartment, Santiago called Sholar and then let him
in through the kitchen door.
¶49 The State argues that the jury heard about this inconsistency during
trial counsel’s cross-examination of Santiago. It also points out that James’s
attorney asked Santiago about telling the police that Sholar rushed in with James,
which Santiago then testified he did not remember. Our review of the record
reflects the jury was aware of this information. The record conclusively shows
that there is no reasonable probability of a different result at trial; therefore, there
is no prejudice to Sholar’s defense. Accordingly, this claim of ineffective
assistance of counsel fails. See Thiel, 264 Wis. 2d 571, ¶80.
18
Santiago admitted on the witness stand that his first statement to the police was self-
serving and that he lied to the police about his involvement in the robbery. For this argument,
Sholar instead relies on Santiago’s second statement at the police station on the night of
October 27, 2010.
29
No. 2019AP1715-CR
C. Trial counsel’s failure to keep his promise to the jury
¶50 Sholar’s final argument is that trial counsel was ineffective for
breaking the promise he made to the jury in his opening statement. We start by
reciting the relevant part of trial counsel’s opening statement:
Now, this was in addition to James Luna [who w]as
actually another individual in the months after this robbery
occurred where … another gun from a robbery was found
in the hands of someone named Cornelius Rainey. I
believe the evidence will show that.
And again, Cornelius Rainey -- There was not really
any follow-up, any attempt to see if [J.W.] could identify
that individual as a person who participated in the robbery,
or even perhaps a debrief to figure out if they could
establish a chain of custody from the robbery, to the time
that these two this individual, Mr. Rainey, Luna .… There
was no attempt to do a chain of custody, to attempt to go
backwards from how the guns wound up in those
individual’s hand to see if they could -- they can tie those
things back to Mr. Sholar or Mr. James.
….
If all these guns were taken, where are the guns?
And where’s the connection and where’s the tie to
Mr. Sholar?
¶51 Sholar argues that his trial counsel’s failure to follow up on the
promise to the jury harmed his trial counsel’s credibility and Sholar’s own
credibility. He further asserts that there was no reasonable strategic basis for trial
counsel to promise to present this information and fail to follow up on it. Sholar
contends this lapse critically undermined the jury’s willingness to believe the
defense.
30
No. 2019AP1715-CR
¶52 After opening statements,19 the only reference to Luna or Rainey
occurred in Sholar’s defense case, when Sholar’s trial counsel recalled one of the
police officers who questioned Santiago in the debriefing interview in June 2012.
Trial counsel questioned the officer as follows:
[TRIAL COUNSEL:] How many addresses does it
reference there for weapons recovered?
[OFFICER:] Three.
[TRIAL COUNSEL:] Were you ever aware of a
Cornelius Rainey that was — that came to be in possession
of some of these stolen weapons?
[OFFICER:] No.
[TRIAL COUNSEL:] How about James Luna?
[OFFICER:] No.
[TRIAL COUNSEL:] Okay. So you weren’t
involved in any of that investigation?
[OFFICER:] No.
¶53 Sholar relies on State v. Coleman, 2015 WI App 38, 362 Wis. 2d
447, 865 N.W.2d 190, to support his argument that failing to live up to a promise
made in an opening statement can constitute prejudice in an ineffective assistance
inquiry. In Coleman, “[n]ot only did counsel unambiguously assure the jury that
Coleman would testify, but he told the jury that ‘he [has] to testify’ and that ‘It’s
my call to make [as] a defense attorney.’” Id., ¶43. The defendant did not testify
and counsel failed to “blunt the impact of his unfulfilled promise in his closing
argument when he did not offer an explanation for why Coleman did not testify.”
19
The record reflects that James’s attorney also referenced Luna in his opening
statement, James rested after the State’s case ended, and James made no further inquiries about
Luna.
31
No. 2019AP1715-CR
Id. We concluded that defense counsel was wrong on the law and the facts and
that we could not discern a reasonable strategy in this course of conduct. Id.
¶54 The State argues that trial counsel’s failure to develop the topic of
Luna and Rainey did not harm Sholar’s credibility in the same manner that
Coleman’s counsel’s promise harmed his client. See id., ¶29. The State further
points out that Coleman’s counsel was found ineffective based on cumulative
deficits in his representations, including the failure to live up to his opening
promise, but also failing to impeach witnesses and disclosing prejudicial facts
about his client during voir dire. Id., ¶¶41-46. Additionally, the State asserts that
it is unclear how trial counsel could have further raised questions about Luna and
Rainey. The State contends, and the trial record reflects, that there is no proof that
those men were involved in the robbery, and trial counsel’s own opening
statement protested that the State made “no attempt to do a chain of custody, to
attempt to go backwards from how the guns wound up in those individual’s hand
to see if they … can tie those things back to Mr. Sholar or Mr. James.” Even if we
were to assume that trial counsel was deficient for failing to live up to a promise to
the jury, Sholar has not shown the prejudice to his defense from this action. We
conclude that the record conclusively demonstrates there is no reasonable
probability of a different trial outcome; therefore, Sholar has not shown prejudice
and his claim for ineffective assistance of counsel fails.
D. Trial counsel’s cumulative deficiencies
¶55 Sholar makes a final argument that the cumulative effect of
counsel’s errors were overwhelming to his defense. When the “cumulative effect
of defense counsel’s deficiencies undermines our confidence in the reliability of
the proceedings” we conclude that the defendant’s defense was prejudiced.
32
No. 2019AP1715-CR
Coleman, 362 Wis. 2d 447, ¶40. Sholar argues that trial counsel repeatedly failed
to take advantage of opportunities to discredit Santiago including pursuing
evidence of Santiago’s plea agreement, impeaching Santiago’s inconsistent
statements, and connecting the robbery to third-parties. The State argues that
these alleged errors are insufficient to undermine confidence in the proceedings
because the evidence against Sholar was strong. The State relies on the general
consistency between J.W.’s and Santiago’s testimony about the course of the
robbery and the CSLI data putting Sholar near the robbery site and in
communication with Santiago. Reviewing Sholar’s allegations individually or
cumulatively, we conclude that the record conclusively demonstrates there has
been no prejudice to his defense; accordingly, his claims of ineffective assistance
of counsel fail.
CONCLUSION
¶56 We conclude that Sholar is not entitled to a new trial. First, we
conclude that the State did not violate Sholar’s Fourth Amendment rights by
obtaining his CLSI data, and accordingly, that his conviction was not obtained
contrary to Carpenter. Second, we conclude that the prosecutor did not commit
misconduct because Santiago’s plea agreement was not misrepresented in these
proceedings. Third, we conclude that Sholar has failed to show newly discovered
evidence in the form of Santiago’s final sentencing, because again, there was no
plea agreement about which the jury was uninformed. Finally, we conclude that
the record conclusively demonstrates that there was no reasonable probability that
the results of the trial would have been different but for trial counsel’s
performance. Sholar has not shown that either prong of an ineffective assistance
of counsel inquiry was satisfied and a Machner hearing is not required.
33
No. 2019AP1715-CR
Accordingly, we affirm his judgment of conviction and the postconviction orders
denying him relief.
By the Court.—Judgment and orders affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
34