State v. Willie M. McBride ( 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 2, 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 Nos.
2020AP385-CR Cir. Ct. Nos. 2018CF3528
2018CF5028
2020AP386-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
WILLIE M. MCBRIDE,
DEFENDANT-APPELLANT.
APPEALS from judgments and an order of the circuit court for
Milwaukee County: DENNIS R. CIMPL and MICHELLE ACKERMAN HAVAS,
Judges. Affirmed.
Before Brash, P.J., Dugan and White, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
Nos. 2020AP385-CR
2020AP386-CR
¶1 PER CURIAM. Willie M. McBride appeals his judgments of
conviction entered after he pled guilty to several charges under a global plea
agreement for two separate cases. He also appeals the order denying his
postconviction motion. McBride argues that he is entitled to withdraw his pleas
because one of his cases should have been dismissed due to a violation of his right
to a speedy trial. He further asserts that plea withdrawal is warranted because his
trial counsel was ineffective for failing to request separate sentencing hearings for
the two cases and for not requesting a presentence investigation (PSI) report.
¶2 Additionally, McBride argues that the trial court1 relied on improper
factors in sentencing him in both cases at the same time, and he is seeking sentence
modification. He also contends that the court erroneously exercised its sentencing
discretion in not making McBride eligible for the Challenge Incarceration Program
(CIP). Furthermore, McBride asserts that he is entitled to sentence credit for the
time he was incarcerated on a third case for which he was acquitted.
¶3 The postconviction court denied McBride’s postconviction motion in
its entirety, without a hearing, stating that all of his claims were without merit. We
agree and, therefore, affirm.
BACKGROUND
¶4 The charges against McBride stem from incidents that occurred in
March 2018. In the first incident, C.J.R. left a bar on South 2nd Street in Milwaukee
shortly after midnight on March 21, 2018, and entered the backseat of a car that
pulled up next to him, believing that it was his Uber ride. The driver confirmed he
1
McBride’s pleas were taken and his sentence was imposed by the Honorable Dennis R.
Cimpl; we refer to him as the trial court. McBride’s postconviction motion was decided by the
Honorable Michelle Ackerman Havas; we refer to her as the postconviction court.
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was with Uber, but C.J.R. noticed that there was another male in the front seat. The
driver turned down a side road, stopped the vehicle, and ordered C.J.R. to get out of
the car.
¶5 One of the men then ordered C.J.R. to give them “everything he had.”
C.J.R. gave them his wallet and his cell phone. The men also demanded C.J.R. give
them his watch; he asked to keep it because it had “sentimental value,” but one of
the men punched him in the face, knocking him to the ground, and “ripped” the
watch from his wrist. The men then got back into the vehicle and drove away.
C.J.R. reported the robbery to the Milwaukee Police Department.
¶6 The second incident occurred on March 24, 2018, in West Allis.
Officers from the West Allis Police Department were investigating a report of a
subject with a gun when they observed a silver Pontiac Vibe—which matched the
description of the vehicle involved, as provided by the person who had called in the
complaint—in a parking lot with its engine running. The vehicle appeared
unoccupied; the officers ran the license plate and discovered it was stolen. The
officers then approached the vehicle and observed a Black male, later identified as
McBride, laying on the backseat. McBride then jumped into the driver’s seat and
attempted to flee, striking a police squad several times as well as another parked car.
One of the officers smashed the driver’s side window and grabbed McBride’s arm,
but had to let go to avoid being struck by the vehicle, and McBride was able to flee
the parking lot at a high rate of speed.
¶7 The officers subsequently interviewed the person who had called with
the gun complaint, and that person was able to provide them with McBride’s name.
The officers then identified McBride from a photograph as the person who fled the
parking lot in the silver Pontiac.
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¶8 The Pontiac was found by the police a short time later, abandoned
with significant damage. A cell phone was recovered from the vehicle which
contained several photos of McBride. Officers were also able to obtain DNA
samples from the steering wheel, gear shift, and inside door handle, which were later
determined to match McBride’s DNA.
¶9 A detective investigating that incident in West Allis subsequently
called the Milwaukee Police Department to share information discovered in his
investigation of McBride. The West Allis detective had found a receipt from a pawn
shop for a Bulova watch that was pawned on April 11, 2018. McBride was
identified in a surveillance video from the pawn shop as the person who pawned the
watch, and C.J.R. identified the pawned watch as the one that was stolen from him.
¶10 The police in West Allis had also searched McBride’s cell phone and
discovered text messages he had sent to his girlfriend on the night C.J.R. was
robbed. In the texts, McBride told her that a “White dude” who was “drunk” had
gotten into his car because “he believed it was a cab,” and that McBride was going
to rob him.
¶11 Thus, for the first incident McBride was charged with robbery with
the use of force as a party to a crime, with a habitual criminality repeater enhancer.
He was also charged with felony bail jumping because at the time of the robbery of
C.J.R., McBride was out on bond in another unrelated felony case, with the
condition that he was not to commit any new crimes.
¶12 For the second incident, McBride was charged with five
counts: operating a vehicle without the owner’s consent, fleeing an officer causing
damage to property, resisting an officer causing soft tissue damage to the officer,
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second-degree recklessly endangering safety, and felony bail jumping, all with a
habitual criminality repeater enhancer.
¶13 The complaint for the first incident was filed on July 27, 2018. At
that time, McBride was in custody on an unrelated charge in a separate case that is
not at issue here. On August 20, 2018, McBride demanded a speedy trial for the
case relating to the first incident, pursuant to WIS. STAT. § 971.10 (2019-20).2 The
State asked for a continuance on October 24, 2018, due to a delay in obtaining
evidence from McBride’s cell phone carrier. McBride moved to dismiss the case,
but the trial court determined that a continuance was appropriate because the
defense had previous notice that this evidence was being sought, and the State had
been working diligently to obtain it. However, because the trial date had to be
adjourned outside of the statutory time frame for meeting a speedy trial demand, the
court amended McBride’s cash bail to a personal recognizance bond, in accordance
with § 971.10(4).
¶14 The complaint relating to the second incident was filed on October 22,
2018. The cases were not joined; however, the State and McBride subsequently
reached a global plea agreement in February 2019 for both cases. Pursuant to that
plea agreement, McBride pled guilty to the felony bail jumping charge from the first
incident, and with regard to the second incident, he pled guilty to the charges of
fleeing an officer causing damage to property, resisting an officer causing soft tissue
injury to the officer, and second-degree recklessly endangering safety.
Additionally, the habitual criminality repeater enhancers were removed from those
charges. The other charges were dismissed but read in at sentencing.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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¶15 McBride was sentenced in both cases in March 2019. The trial court
imposed a global sentence of six years of initial confinement and five years of
extended supervision. The court did not grant McBride eligibility for the CIP.
Additionally, the court noted that McBride would receive a sentence credit of 232
days.
¶16 McBride filed a postconviction motion in February 2020 seeking to
withdraw his pleas. He argued that the first case should have been dismissed when
the State was unable to comply with his speedy trial request. He also asserted that
his trial counsel was ineffective for failing to request that the cases be sentenced
separately, and for failing to request a PSI report, which he claimed would have
provided more details about his background and his efforts to support his family,
and he contended that such information could have persuaded the trial court to
impose a more favorable sentence.
¶17 The postconviction court rejected these claims. It found that the trial
court had properly exercised its discretion in determining that dismissal was not
warranted under the speedy trial statute. The postconviction court also found that
there was no prejudicial effect in sentencing the cases together because the trial
court is obligated to consider all information available regarding a defendant’s
conduct and behavior when imposing a sentence. Furthermore, the postconviction
court observed that there is no basis in law to request separate sentencing hearings
in this matter and, as such, any motion by trial counsel would have been denied.
The postconviction court also noted that a PSI report is not a requirement, and even
if one had been ordered, “[g]iven the various factors the [trial] court considered in
its sentencing decision, there is no reasonable probability that additional information
about [McBride’s] family background would have made a difference” in the
sentence that was imposed.
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¶18 Additionally, McBride requested an additional 105 days of sentence
credit in his postconviction motion. This request was also denied after the
postconviction court pointed out that McBride’s calculations included time he was
in custody on the unrelated charge, and thus should not be included. Furthermore,
the postconviction court determined that the sentence credit of 147 days reflected in
the judgment of conviction in one of the underlying cases here was duplicative, in
that it was already reflected in the sentence credit granted in the other underlying
case. Moreover, the postconviction court’s calculations showed that McBride’s
total sentence credit should have been 228 days, as opposed to 232 days, based on
his time in custody for the underlying cases. Therefore, the postconviction court
ordered that McBride’s sentence credit be amended to a total of 228 days.
¶19 In short, the postconviction court denied McBride’s motion in its
entirety, without a hearing. This appeal follows.
DISCUSSION
Right to a Speedy Trial
¶20 McBride first argues that he is entitled to withdraw his pleas because
the case relating to the first incident should have been dismissed by the trial court
after his right to a speedy trial was violated. A defendant seeking to withdraw his
or her plea after sentencing “must prove, by clear and convincing evidence, that a
refusal to allow withdrawal of the plea would result in ‘manifest injustice.’” State
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v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d 594, 716 N.W.2d 906 (citation omitted).
McBride asserts that this error constitutes a manifest injustice.3
¶21 There is both a constitutional and a statutory right to a speedy trial.
With regard to the constitutional right, “[b]oth the Sixth Amendment to the United
States Constitution and article I, section 7 of the Wisconsin Constitution guarantee
an accused the right to a speedy trial.” State v. Urdahl, 2005 WI App 191, ¶11, 286
Wis. 2d 476, 704 N.W.2d 324. Whether a defendant has been denied his
constitutional right to a speedy trial is a question of law that we review de novo. See
id., ¶10. However, the findings of fact made by the trial court will be upheld unless
they are clearly erroneous. Id.
¶22 To make the determination of whether the right to a speedy trial has
been violated, courts use a “four-part balancing test” established in Barker v.
Wingo, 407 U.S. 514 (1972). See Urdahl, 286 Wis. 2d 476, ¶11. This test “weighs
the conduct of the prosecution and the defense and balances the right to bring the
defendant to justice against the defendant’s right to have that done speedily.” Id.However, the right to a speedy trial “is not subject to bright-line determinations and
must be considered based on the totality of circumstances that exist in the specific
case.” Id.¶23 The first Barker factor is “the length of the delay,” which is also the
“triggering mechanism used to determine whether the delay is presumptively
3
A manifest injustice is shown “[w]hen a defendant establishes a denial of a relevant
constitutional right[.]” State v. Bangert, 131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986) (emphasis
added). Such relevant constitutional rights have generally been recognized as those relating to the
taking of a plea by the trial court or ineffective assistance of counsel, although our supreme court
has noted that this is a “non-exhaustive list of situations” where a manifest injustice may occur.
See State v. Cain, 2012 WI 68, ¶26 & n.6, 342 Wis. 2d 1, 816 N.W.2d 177. Because we conclude
that McBride’s right to a speedy trial was not violated, we make no determination as to whether
such a violation would constitute a manifest injustice as it relates to plea withdrawal.
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prejudicial.” Urdahl, 286 Wis. 2d 476, ¶12. “Generally, a post-accusation delay
approaching one year is considered to be presumptively prejudicial.” Id.Furthermore, “[i]t is only necessary to inquire into the other Barker factors when a
delay is presumptively prejudicial.” State v. Provost, 2020 WI App 21, ¶27, 392
Wis. 2d 262, 944 N.W.2d 23.
¶24 In this case, the delay was well under one year: McBride’s speedy
trial demand was made on August 20, 2018; the State moved for a continuance on
October 24, 2018; and the jury trial was rescheduled for February 25, 2019, although
his plea was taken February 14, 2019. Thus, the total time frame of these
proceedings was approximately six months. As a result, because this is no where
near the presumptively prejudicial time frame of one year, see Urdahl, 286 Wis. 2d
476, ¶12, we conclude that McBride has not established that his constitutional right
to a speedy trial was violated, and we will not discuss the Barker factors further,
see Provost, 392 Wis. 2d 262, ¶27.
¶25 With regard to the statutory right to a speedy trial, WIS. STAT.
§ 971.10(2)(a) provides that “[t]he trial of a defendant charged with a felony shall
commence within 90 days from the date trial is demanded[.]” Here, the trial court
granted the State’s motion for a continuance and adjourned the trial date such that
it was outside of the ninety-day time frame. The court acknowledged this issue and
resolved it by amending McBride’s cash bail to a personal recognizance bond, in
accordance with § 971.10(4).
¶26 McBride argues that WIS. STAT. § 971.10(3)(c) prohibits the trial
court from granting a continuance due to the “lack of diligent preparation” by the
State. However, the trial court specifically stated that the State had in fact been
working diligently to obtain the cell phone evidence, noting the time involved in
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obtaining such information from a “large cellular carrier[]” that is located out of
state, and that the State had “been on top of this, but for whatever reason it didn’t
come through.” We find nothing in the record to indicate that this finding is clearly
erroneous. See Urdahl, 286 Wis. 2d 476, ¶10. Therefore, because the trial court
acted in accordance with the provisions of § 971.10, we conclude that McBride has
not established that his statutory right to a speedy trial was violated, either. See
Urdahl, 286 Wis. 2d 476, ¶10.
¶27 In other words, the trial court did not err in denying McBride’s motion
to dismiss the case that was subject to his speedy trial demand, and thus McBride’s
claim regarding this issue in his postconviction motion was properly rejected by the
postconviction court.
Ineffective Assistance of Counsel
¶28 McBride next argues that he is entitled to withdraw his pleas because
his trial counsel was ineffective. Proving ineffective assistance of counsel is one
way to establish a manifest injustice. State v. Taylor, 2013 WI 34, ¶49, 347 Wis.
2d 30, 829 N.W.2d 482.
¶29 To prove ineffective assistance of counsel, a defendant must show that
his trial counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prove
constitutional deficiency, the defendant must establish that counsel’s conduct falls
below an objective standard of reasonableness.” State v. Love, 2005 WI 116, ¶30,
284 Wis. 2d 111, 700 N.W.2d 62. “To prove constitutional prejudice, 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
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outcome.’” Id. (citations and one set of quotation marks omitted). The defendant
“must prevail on both parts of the test to be afforded relief.” State v. Allen, 2004
WI 106, ¶26, 274 Wis. 2d 568, 682 N.W.2d 433.
¶30 We review de novo “‘the legal questions of whether deficient
performance has been established and whether it led to prejudice rising to a level
undermining the reliability of the proceeding.’” State v. Roberson, 2006 WI 80,
¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation omitted). However, “[a] court need
not address both components of this inquiry if the defendant does not make a
sufficient showing on one.” State v. Smith, 2003 WI App 234, ¶15, 268 Wis. 2d
138, 671 N.W.2d 854.
¶31 A claim of ineffective assistance of counsel requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
However, a defendant is not automatically entitled to an evidentiary hearing relating
to his or her postconviction motion. State v. Bentley, 201 Wis. 2d 303, 309, 548
N.W.2d 50 (1996). Rather, the trial court is required to hold an evidentiary hearing
only if the defendant has alleged “sufficient material facts that, if true, would entitle
the defendant to relief.” Allen, 274 Wis. 2d 568, ¶14. This is a question of law that
we review de novo. Id., ¶9.
¶32 If, on the other hand, the postconviction motion “does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to relief,”
the trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
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facts, applied the proper legal standards, and engaged in a rational decision-making
process.” Bentley, 201 Wis. 2d at 318.
¶33 McBride first argues that his trial counsel was ineffective for failing
to request separate sentencing hearings for his two cases. He asserts that the trial
court considered “irrelevant facts” in each case since both cases were sentenced
together. However, when imposing sentence, a trial court may consider all “relevant
information concerning a defendant’s life and characteristics.” State v. Frey, 2012
WI 99, ¶45, 343 Wis. 2d 358, 817 N.W.2d 436. This includes “not only ‘uncharged
and unproven offenses’ but also ‘facts related to offenses for which the defendant
has been acquitted.’” Id., ¶47 (citation omitted). Based on this established standard,
trial counsel had no legal basis for requesting separate sentencing hearings, and
therefore was not deficient for failing to do so. See State v. Allen, 2017 WI 7, ¶46,
373 Wis. 2d 98, 890 N.W.2d 245 (“It is well[]established that trial counsel could
not have been ineffective for failing to make meritless arguments.”). Thus, this
claim fails.
¶34 McBride also argues that his trial counsel was ineffective for failing
to request a PSI report prior to sentencing. However, a PSI report “is not required
and the decision to order one is discretionary.” State v. Jackson, 187 Wis. 2d 431,
439, 523 N.W.2d 126 (Ct. App. 1994). Still, McBride asserts that a PSI report
“would have highlighted McBride’s efforts to support his family and his family’s
need for his support in more detail.”
¶35 Yet, as the postconviction court pointed out, a PSI report “can include
both positive and negative information about a defendant.” McBride has not alleged
that a PSI report would not have included information that would have made a
negative impact on his sentence. Additionally, McBride has not alleged that a PSI
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report would have included information that was not already before the trial court
at sentencing—the record demonstrates that trial counsel discussed McBride’s role
in supporting his family at the sentencing hearing.
¶36 To be entitled to a Machner hearing for an ineffective assistance of
counsel claim, the postconviction motion “must include facts that ‘allow the
reviewing court to meaningfully assess [the defendant’s] claim.’” Allen, 274 Wis.
2d 568, ¶21 (brackets in Allen). In other words, the motion must include a “factual
basis” that supports the assertions in the motion. Id. In contrast, McBride’s motion
with regard to the PSI report issue is completely conclusory, and is thus insufficient
to require that a hearing be granted. Id., ¶9.
¶37 Therefore, we conclude that the postconviction court did not err in
denying McBride’s request for a Machner hearing regarding his claim of ineffective
assistance of counsel. See Allen, 274 Wis. 2d 568, ¶9.
Sentencing Issues
¶38 McBride makes several claims with regard to his sentence. First, he
argues that he is entitled to sentence modification because the trial court relied on
“improper sentencing factors” when it sentenced McBride in both cases during the
same sentencing hearing. This argument is, in effect, a repackaging of his argument
asserting ineffective assistance based on his trial counsel’s failure to request
separate sentencing hearings, which we determined was without merit.
¶39 Furthermore, our review of a sentencing decision is “limited to
determining if discretion was erroneously exercised.” See State v. Harris, 2010 WI
79, ¶30, 326 Wis. 2d 685, 786 N.W.2d 409 (citation omitted). We have already
stated that it is well within the trial court’s sentencing discretion to consider all
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“relevant information concerning a defendant’s life and characteristics.” See Frey,
343 Wis. 2d 358, ¶45. Therefore, this version of McBride’s claim regarding the
sentencing of his cases together is also without merit.
¶40 Additionally, McBride attempts to argue that because the cases were
not joined pursuant to WIS. STAT. § 971.12(4), they should not have been sentenced
together. However, he provides no legal authority for this premise. We therefore
will not consider this argument. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (“Arguments unsupported by references to legal
authority will not be considered.”).
¶41 The next sentencing issue argued by McBride is that the trial court
erred in denying him eligibility for the CIP. He asserts that this was a misuse of the
court’s discretion because he meets most of the statutory requirements for the
program.
¶42 Indeed, the determination for eligibility for the CIP is within the trial
court’s discretion when imposing sentence. State v. Steele, 2001 WI App 160, ¶8,
246 Wis. 2d 744, 632 N.W.2d 112. In fact, even if a defendant meets all of the
statutory requirements for the CIP, the trial court still has the discretion to declare
the defendant ineligible. Id.¶43 “A trial court misuses its discretion when it fails to state the relevant
and material factors that influenced its decision, relies on immaterial factors, or
gives too much weight to one factor in the face of other contravening factors.” Id.,
¶10. Here, the trial court stated that McBride would not be eligible for the CIP “due
to [his] record and due to the violent nature of these crimes.” The record supports
this statement, and there is no indication that the decision was inappropriate based
on the sentencing factors that were considered. See id. Therefore, we conclude that
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the trial court did not erroneously exercise its discretion in denying McBride
eligibility for the CIP.
¶44 Finally, McBride argues that he should be granted 108 days of credit
on his sentence, in addition to the 228 days calculated by the postconviction court.
This requested credit is based on time that McBride was in custody for the unrelated
case, in which he was subsequently acquitted. McBride asserts that “[f]or reasons
of equity,” he should be granted a sentence credit in the cases underlying this appeal
for that time.
¶45 “[A] factual connection between the sentence imposed and the
custody that preceded it is required for sentence credit.” State v. Harrison, 2020
WI 35, ¶44, 391 Wis. 2d 161, 942 N.W.2d 310. There is no such factual connection
between the cases underlying this appeal and the case for which McBride is seeking
the additional sentence credit. Furthermore, his “equity” reasoning is not sufficient
to overcome this requirement, as “‘a procedural or other tangential connection will
not suffice.’” See id. (citations omitted). Therefore, this argument fails.
¶46 Accordingly, we affirm McBride’s judgments of conviction as well as
the order denying his postconviction motion without a hearing.
By the Court.—Judgments and order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
15