State v. Ronald Eugene Provost

2020 WI App 21COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case Nos.: 2018AP1268-CR, 2018AP1269-CR
†Petition for Review filed
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RONALD EUGENE PROVOST,
†DEFENDANT-APPELLANT.
Opinion Filed: April 14, 2020
Submitted on Briefs: October 8, 2019
Oral Argument:
JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Christopher M. Zachar of Zachar Law Office, LLC,
La Crosse.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Michael C. Sander, assistant attorney general, and Joshua L.
Kaul, attorney general.
2020 WI App 21COURT 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 14, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal Nos. 2018AP1268-CR Cir. Ct. Nos. 2014CF390
2015CF143
2018AP1269-CR
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RONALD EUGENE PROVOST,
DEFENDANT-APPELLANT.
APPEALS from judgments and orders of the circuit court for Douglas
County: GEORGE L. GLONEK, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
¶1 SEIDL, J. In these consolidated appeals, Ronald Provost appeals a
judgment, entered upon a jury’s verdict, convicting him of causing a child to view
sexual activity and a judgment, entered upon his guilty pleas, convicting him of
Nos. 2018AP1268-CR
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seventh-offense operating a motor vehicle while intoxicated (OWI) and felony bail
jumping.1 He also appeals the orders denying his motions for postconviction relief.
¶2 With respect to his conviction for causing a child to view sexual
activity, Provost contends that he was denied his constitutional right to a speedy trial
under the traditional four-factor test established in Barker v. Wingo, 407 U.S. 514(1972), as applied and interpreted by our case law. In the alternative, he argues that
because two of the attorneys appointed to represent him failed to adhere to the
minimum performance guidelines set by the Office of the Wisconsin State Public
Defender (SPD), we should adopt and apply the “systemic breakdown” exception
established by Vermont v. Brillon, 556 U.S. 81 (2009), to conclude that his speedy-
trial right was violated.2
¶3 As to his conviction for seventh-offense OWI, Provost contends that
his trial counsel provided him with ineffective assistance. Specifically, he faults his
counsel for failing to collaterally attack two of his prior OWI-related criminal
convictions in Minnesota.
¶4 We conclude that: (1) considering the four Barker factors in light of
the totality of the circumstances, there was no violation of Provost’s right to a
speedy trial; (2) even assuming that two of the attorneys assigned to represent
Provost failed to adhere to the minimum standards set by the SPD (an assumption
1
In regard to the latter judgment, Provost only raises an argument concerning the seventh-
offense OWI conviction. Consequently, we deem any challenge to his felony bail jumping
conviction abandoned. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998) (arguments not pursued on appeal may be deemed abandoned).
2
The “systemic breakdown” exception allows for a delay caused by a defendant’s assigned
counsel—which is normally attributable to a defendant—to be imputed to the State. See Vermont
v. Brillon, 556 U.S. 81, 94 (2009).
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which, for reasons explained below, is generous), no “systemic breakdown”
occurred within the meaning of Brillon; and (3) Provost has failed to demonstrate
that he was prejudiced by his counsel’s failure to collaterally attack the challenged
prior OWI convictions. Consequently, we affirm.
BACKGROUND
¶5 On August 14, 2014, the State filed a criminal complaint against
Provost in Douglas County case No. 2014CF300. After the State failed to timely
arraign Provost, however, the charges against Provost were dismissed without
prejudice. The State then filed a criminal complaint against Provost in Douglas
County case No. 2014CF390. The charges against Provost in case
No. 2014CF390—one count each of causing a child to view sexual activity and
child enticement—were the same as those previously brought in case
No. 2014CF300 and were based upon the same conduct.3
¶6 More specifically, the State alleged in the criminal complaint that
Provost answered an online advertisement purporting to be from a “younger” female
3
We note that the date on which, and the case number under which, Provost was originally
charged are taken from assertions in the “statement of the cases and facts” section of Provost’s
brief-in-chief. The record citation Provost provides to support these assertions is a transcript from
Provost’s initial appearance in Douglas County case No. 2014CF390, in which the circuit court
observes that the “same charges” had been previously dismissed without prejudice due to the
State’s failure to timely arraign Provost. The court did not, however, state either the date on which,
or the case number under which, the charges had been previously filed. Nor has our independent
review of the record confirmed either of Provost’s assertions, and no record of any case having
been filed against Provost in August 2014 appears on the Consolidated Court Automation Programs
(CCAP) website.
Nonetheless, we accept as fact that the charges against Provost—which eventually led to
his conviction in case No. 2014CF390—were originally filed on August 14, 2014, as case
No. 2014CF300. We do so for two reasons: (1) the State does not dispute Provost’s assertions in
its response brief; and (2) the State agrees with Provost that it took nearly thirty-five months from
the date charges were brought against him to the date of his trial in case No. 2014CF390—a
calculation that is accurate only if the charges were, in fact, originally filed in August 2014.
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“looking 4 someone to have fun with” by asking if the advertisement’s poster would
“like to have lots of fun, like to be eaten out?” The poster, who was actually an
investigator from the City of Superior Police Department, responded that “I am only
15.” A text conversation ensued, during which Provost sent the purported fifteen-
year-old female a picture of his erect penis and arranged to meet at a hotel for a
sexual encounter. When Provost arrived at the hotel, police placed him under arrest.
¶7 Provost was arraigned in case No. 2014CF390 on December 15, 2014.
The circuit court, at the request of Provost’s appointed counsel, Fredric Anderson,
did not set a trial date at the arraignment. Instead, the court scheduled a status
conference for February 2, 2015, to accommodate Anderson’s request to allow for
further “discussions” with the State.
¶8 The case proceeded through a series of status conferences over the
next twenty months.4 These conferences were scheduled at the request of attorney
Anderson for various reasons, including twice due to the filing of new felony
charges against Provost in separate, unrelated cases. As relevant to this appeal, in
one of those cases, Douglas County case No. 2015CF143, the State charged Provost
with seventh-offense OWI and two counts of felony bail jumping.
¶9 On June 6, 2016, the circuit court scheduled a trial for all of the
pending cases against Provost for September 29, 2016, with a mandatory pretrial
conference on September 16. Provost, however, failed to appear at the pretrial
conference. Consequently, the court issued a bench warrant and removed the trial
4
As will be seen below, Provost did not make a speedy trial demand during this time
period.
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date from the court’s calendar. Provost was taken into custody one month later, on
October 25, and the court imposed a $25,000 cash bail as a condition for his release.5
The court also rescheduled Provost’s trial date for January 26, 2017.
¶10 On November 15, 2016—more than two years after the charges
against him were filed—Provost filed a demand for a speedy trial. Six days later,
attorney Anderson moved to withdraw as counsel. Anderson asserted two reasons
for his request: (1) he had “developed a conflict of interest”; and (2) his relationship
with Provost had “deteriorated.” The court granted Anderson’s motion on the same
day it was filed.
¶11 The next day, the SPD appointed attorney Christopher Gramstrup to
represent Provost in all the cases currently pending against him in Douglas County,
including case Nos. 2014CF390 and 2015CF143. At a pretrial hearing on January
9, 2017, Gramstrup informed the circuit court that a plea agreement had been
reached in case No. 2015CF143, although no such agreement had been reached in
case No. 2014CF390.6 On January 19, 2017, in accordance with the plea agreement,
Provost entered guilty pleas to seventh-offense OWI and one count of felony bail
jumping in case No. 2015CF143. The court revoked Provost’s bond at the
conclusion of this plea hearing.
¶12 At the outset of the February 15, 2017 sentencing hearing in case No.
2015CF143, the State informed the circuit court the parties had reached a plea
agreement to “resolve all the files.” Consequently, the court decided to take
5
Due to his inability to post this bail, Provost remained in custody.
6
According to the transcript for this pretrial hearing, at this time the trial date for case No.
2014CF390 had been rescheduled to February 16, 2017, although the appellate record is unclear as
to when this rescheduling occurred.
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Provost’s plea in case No. 2014CF390 before proceeding to sentencing in case
No. 2015CF143. During the plea colloquy, however, Provost stated he “was having
trouble with this case, Your Honor, because I didn’t have nothing to do with any kid
or anything, but yet I’m told I’m going to be crazy if I don’t take this plea.” Based
on this statement, the court concluded that Provost’s plea was not “freely and
voluntarily made,” and it declined to accept it.
¶13 Due to the unresolved status of case No. 2014CF390, the circuit court
adjourned the February 15, 2017 hearing without sentencing Provost in case No.
2015CF143. Additionally, the court asked the parties if they had any objections to
rescheduling the trial in case No. 2014CF390, which was still on the court’s
schedule for the next day. Attorney Gramstrup responded: “No. I’ve talked to my
client about that. I don’t believe there’s an objection.” While the parties discussed
potential dates for rescheduling the trial, Gramstrup informed the court that Provost
had just told him “that he did file a Speedy [trial demand]. However, when I got
Mr. Anderson’s file, there was no Speedy Trial Demand in there.” After the circuit
court clerk confirmed that such a demand had been filed, the parties agreed to set
the trial for April 25, 2017.
¶14 The following day, at Provost’s request, attorney Gramstrup moved
to withdraw. The circuit court granted this motion five days later, on February 21,
2017. The next day, the SPD appointed attorney Lance Nelsen to represent Provost.
¶15 Just over one month later, attorney Nelsen moved to withdraw. As
with attorney Gramstrup, Nelsen did so at Provost’s request. Provost explained at
a March 31, 2017 hearing on this motion that he felt that “both [of my] last two
attorneys never asked me anything about my case, and they both said, there’s
nothing I can do for you. And told me I was crazy if I don’t take the State’s offer.
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And I don’t feel they were properly representing me.” Over the State’s objection
that allowing Nelsen to withdraw would further delay bringing the case to trial, the
circuit court granted Nelsen’s motion. The court informed Provost, however, that
“at some point we are not going to just keep continuing this case and appointing you
new counsel.”
¶16 The SPD subsequently appointed attorney Frederick Bourg to
represent Provost on April 4, 2017. Bourg then moved the circuit court to release
Provost from custody due to an alleged violation of Provost’s right to a speedy trial.
The court denied this motion, concluding that the delays in bringing Provost to trial
had “been to accommodate Mr. Provost in his continual request for different
counsel.”
¶17 The trial in case No. 2014CF390 ultimately took place on June 29,
2017, with attorney Bourg representing Provost. The jury convicted Provost of
causing a child to view sexual activity, but it acquitted him of child enticement.
¶18 Following sentencing in case Nos. 2014CF390 and 2015CF143,
Provost filed separate postconviction motions in each case. In case No. 2014CF390,
he moved the circuit court to vacate his conviction and dismiss the charges against
him based on the alleged violation of his constitutional right to a speedy trial. In
case No. 2015CF143, he sought relief based on attorney Gramstrup’s alleged
ineffective assistance—namely, Gramstrup’s failure to collaterally attack two of
Provost’s prior OWI-related convictions, from Minnesota in 1992 and 2000, on the
ground that Provost did not receive the assistance of counsel—nor did he
knowingly, voluntarily and intelligently waive that right—during the criminal
proceedings in those cases.
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¶19 The circuit court held a combined evidentiary hearing on Provost’s
motions. At the hearing, attorney Gramstrup testified he was aware that Provost
had not been represented by counsel during the proceedings related to the two
challenged Minnesota convictions. Gramstrup also stated that he “believe[d]” he
had discussed potentially collaterally attacking those convictions with Provost,
although he ultimately did not pursue any collateral attack.
¶20 Provost testified that attorney Gramstrup did not inform him that he
could have collaterally attacked any of his prior OWI-related convictions. He also
testified that Gramstrup told him he would be “crazy” not to accept a plea agreement
in case No. 2014CF390. Similarly, Provost testified that attorney Nelsen
“laugh[ed]” at him and told him that there was “nothing [he could] really do for”
Provost.7
¶21 Provost also testified that on August 2, 2015, a potentially exculpatory
witness in case No. 2014CF390 passed away in a motorcycle accident. Provost
explained that this potential witness was a longtime friend who was traveling with
Provost when he answered the online advertisement. According to Provost, this
friend would have testified that Provost expressed skepticism as to whether the
person who posted the advertisement was actually fifteen years old.
¶22 The State submitted into evidence a certified copy of Provost’s
Minnesota driving record. That record showed that, in connection with both the
1992 and 2000 Minnesota criminal cases, Provost had implied consent violations
and his driver’s license had been administratively revoked.
7
Attorneys Nelsen, Anderson, and Bourg did not testify at the postconviction hearing.
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¶23 Following arguments from both sides, the circuit court denied
Provost’s motions. The court first found that attorney Gramstrup’s testimony was
credible, but that “much of [Provost’s] testimony lacks credibility.” The court then
found that in relation to case No. 2014CF390, “the reasons for the delays all go back
to the defendant,” and it therefore determined that no speedy trial violation occurred.
¶24 As to case No. 2015CF143, the circuit court concluded that Provost
could not show that any deficient performance by attorney Gramstrup prejudiced
him. The court reasoned that Provost’s Minnesota driving record showed that his
driver’s license had been administratively revoked in the civil proceedings related
to the incidents that led to Provost’s convictions in both the 1992 and 2000 criminal
cases.8 Thus, even if Provost’s 1992 and 2000 criminal convictions were
successfully collaterally attacked due to a violation of Provost’s constitutional right
to counsel, Provost would still have six countable prior OWI offenses.9 Provost
now appeals.
DISCUSSION
I. Case No. 2014CF390
¶25 Provost argues his conviction in case No. 2014CF390 must be
reversed because he was denied his constitutional right to a speedy trial. “Both the
8
No Sixth Amendment right to counsel attaches to implied consent proceedings in
Minnesota because they are civil in nature. See Maietta v. Commissioner of Pub. Safety, 663
N.W.2d 595, 600 (Minn. Ct. App. 2003).
Under Wisconsin’s statutory progressive penalty requirement for OWI-related events,
9
“suspensions, revocations, or convictions arising out of the same occurrence or incident shall be
counted as one.” See, e.g., WIS. STAT. § 346.65(2)(am)6. (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
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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 this
right has been violated is a question of law that we review independently, although
we accept any findings of fact made by the circuit court unless they are clearly
erroneous. Id., ¶10.
¶26 When assessing whether a speedy trial violation has occurred, we
apply the four-factor test established in Barker. See Urdahl, 286 Wis. 2d 476, ¶11.
That is, we consider: (1) the length of the delay; (2) the reasons for the delay;
(3) whether the defendant asserted the right to a speedy trial; and (4) whether the
delay prejudiced the defendant. Id. 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. Thus, the test requires us to
consider the totality of circumstances that exist in each specific case to determine if
a speedy trial violation has occurred. Id. Doing so here, we conclude there was no
violation of Provost’s right to a speedy trial.
A. The first Barker factor
¶27 The first Barker factor—the length of the delay—is a “triggering
mechanism used to determine whether the delay is presumptively prejudicial.”
Urdahl, 286 Wis. 2d 476, ¶12. A postaccusation delay is considered to be
presumptively prejudicial when it “approach[es] one year.” Id. It is only necessary
to inquire into the other Barker factors when a delay is presumptively prejudicial.
State v. Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct. App. 1998). In this
case, the State concedes that the delay of over thirty-four months between the initial
filing of charges against Provost on August 14, 2014, and the commencement of his
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trial on June 29, 2017, was presumptively prejudicial. We therefore consider the
remaining Barker factors.
B. The second Barker factor
¶28 The second Barker factor directs us to consider the reasons for the
delay. See Urdahl, 286 Wis. 2d 476, ¶11. In doing so, we first “identify the reason
for each particular portion of the delay,” and we then “accord different treatment to
each category of reasons.” Id., ¶26.
A deliberate attempt by the government to delay the trial in
order to hamper the defense is weighted heavily against the
State, while delays caused by the government’s negligence
or overcrowded courts, though still counted, are weighted
less heavily. On the other hand, if the delay is caused by
something intrinsic to the case, such as witness
unavailability, that time period is not counted. Finally, if the
delay is caused by the defendant, it is not counted.
Id. (citations omitted).
¶29 We begin by noting that the circuit court made a factual finding that
the entirety of the delay in bringing Provost to trial occurred “to accommodate
Mr. Provost and the defense.” Provost does not directly challenge this finding on
appeal. Instead he argues, for two reasons, that notwithstanding the fact that the
delays were made to accommodate him, we should hold the State accountable for
not bringing him to trial more quickly. We address, and reject, each of Provost’s
arguments in turn.
1. State’s duty to bring Provost to trial
¶30 First, Provost relies on the long-recognized principle that “a defendant
has no duty to bring himself to trial; the State has that duty as well as the duty of
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insuring that the trial is consistent with due process.” Hadley v. State, 66 Wis. 2d
350, 361, 225 N.W.2d 461 (1975). Based on this principle, Provost faults the State
for permitting the delay in bringing him to trial to occur, because “it is hard to see
what more [he] could have done,” as “he tried to enforce his constitutional right [to
a speedy trial] via written request, verbal demand, and motion to compel, all without
success.”
¶31 Provost’s argument is both factually and legally flawed. Factually,
Provost ignores that he did not make a speedy trial demand until November 15,
2016––that is, over two years after the State initially charged him and after his
original trial date had to be rescheduled because Provost failed to appear at the
pretrial conference. As such, we disagree with Provost that it is “hard to see” what
more Provost could have done to bring about a speedier trial. He could have
simply: (1) appeared at the mandatory pretrial conference; or (2) promptly
demanded a speedy trial when the State filed the charges against him.
¶32 As to his legal argument, Provost seizes on the Hadley court’s
statement that “[a] defendant has no duty to bring himself to trial; the State has that
duty,” while ignoring the court’s qualification of the State’s duty—i.e., that a State
must also “insur[e] that the trial is consistent with due process.” See id. For the
reasons explained below, we conclude that Provost’s limited reading of Hadley
would render analysis of the second Barker factor unnecessary, and we therefore
reject it.
¶33 If we looked solely at the State’s duty to bring a defendant to trial and
ignored the State’s duty to ensure that the trial is consistent with due process, there
would be no need to “identify the reason for each particular portion of the delay”
and then “accord different treatment to each category of reasons.” See Urdahl, 286
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Wis. 2d 476, ¶26. Instead, we would simply calculate the length of the delay and,
if it exceeded a certain length, conclude that the right to a speedy trial had been
violated.
¶34 The facts of this case demonstrate why we cannot focus exclusively
on the State’s duty to bring a defendant to trial. As the circuit court found, the delay
between the initial charging and Provost’s original trial date resulted from “specific
requests for delays and rescheduling and continuances” made by attorney Anderson.
If we adopted Provost’s argument, the State would have been placed on the horns
of a dilemma when Anderson made these “specific requests”: Object and risk
violating Provost’s right to due process, or acquiesce and risk violating his right to
a speedy trial. Indeed, the Barker court itself rejected such a perverse rule,
stating: “[B]arring extraordinary circumstances, we would be reluctant indeed to
rule that a defendant was denied th[e] constitutional right [to a speedy trial] on a
record that strongly indicates … that the defendant did not want a speedy trial.”
Barker, 407 U.S. at 536.
2. Systemic breakdown
¶35 Provost next argues that attorneys Gramstrup and Nelsen failed to
adhere to the “minimum performance guidelines” set by the SPD, and that we
should therefore adopt and apply the Brillon “systemic breakdown” exception. We
are not persuaded.
¶36 As an initial matter, we observe that the foundation upon which
Provost builds his “systemic breakdown” argument is shaky, at best. Provost relies
on his own testimony from the postconviction hearing to assert that, as a matter of
fact, both attorneys Gramstrup and Nelsen “ignored his upcoming trial and rarely
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communicated with Mr. Provost to prepare. They pressured Mr. Provost to plead
guilty, told him there was nothing to be done, and laughed at his claims of
innocence.”
¶37 In making these assertions, Provost notes that his testimony was
presented “without rebuttal.” He fails to recognize, however, that when a circuit
court acts as a finder of fact, it can properly reject even uncontroverted testimony.
State v. Kimbrough, 2001 WI App 138, ¶29, 246 Wis. 2d 648, 630 N.W.2d 752.
The court may do so because the finder of fact is the ultimate arbiter of the
witnesses’ credibility and of the weight to be given to their testimony. State v.
Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257 Wis. 2d 421, 651
N.W.2d 345. Provost’s failure to recognize this principle is notable because, here,
the court expressly found that “much of [Provost’s] testimony lacks credibility.”
¶38 Nonetheless, we recognize that the circuit court did not directly accept
or reject that portion of Provost’s testimony where he described the manner in which
attorneys Gramstrup and Nelsen represented him. Accordingly, we will assume, for
the sake of argument, that the court accepted Provost’s testimony regarding that
representation. Even doing so, we reject Provost’s “systemic breakdown”
argument.
¶39 There is no dispute that, generally, “delays caused by defense counsel
are properly attributed to the defendant.” Brillon, 556 U.S. at 94. As the Brillon
Court recognized, this general rule applies even when assigned counsel “fail[s] ‘to
move [a] case forward,’” and a defendant therefore has a reasonable basis to seek
new counsel. See id. at 92-93 (citation omitted). The Brillon Court did, however,
carve out a limited exception to the general rule—that is, that “[d]elay resulting from
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a systemic breakdown in the public defender system could be charged to the State.”
Id. at 94.
¶40 Here, Provost argues the “systemic breakdown” exception applies
because attorneys “Gramstrup and Nelsen failed to comply with minimal standards
of representation implemented by the State Public Defender’s Office.” Before
considering Provost’s argument, we pause to recognize that the Brillon Court did
not provide precise contours to define what constitutes a “systemic breakdown.”
See id. Nor has any published Wisconsin case done so. In considering this issue,
however, we find persuasive the decision of the New Mexico Supreme Court in
State v. Ochoa, 406 P.3d 505 (N.M. 2017). Specifically, the Ochoa court held that
a defendant must show “problems that are both institutional in origin and
debilitating in scope” to establish that a “systemic breakdown” occurred within the
meaning of Brillon.10 Ochoa, 406 P.3d at 514.
¶41 Applying this common-sense definition, we conclude that no systemic
breakdown occurred in this case. At most, Provost has identified that two of the
attorneys appointed to represent him (for a combined total of 125 days) failed to
comply with performance standards promulgated by the SPD. But the failure of two
individual attorneys to meet the standards set by the SPD does not show a problem
that is institutional in origin or debilitating in scope—especially where, as here,
10
We note that in defining what constitutes a “systemic breakdown,” the Ochoa court
observed that its interpretation was consistent with the other jurisdictions that have considered the
issue. See State v. Ochoa, 406 P.3d 505, 514 (N.M. 2017) (collecting cases). Outside of his
misplaced reliance on an earlier New Mexico Supreme Court decision—which we discuss below—
Provost provides no citation to any legal authority that causes us to doubt the appropriateness of
the Ochoa court’s “systemic breakdown” definition.
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Provost presented no evidence that the individual attorneys’ alleged failures resulted
from a lack of funding, training or supervision in the SPD system.
¶42 In short, without showing that there is a problem whose origin lies
with the SPD system itself, Provost cannot show that a systemic breakdown
occurred. Consequently, the “systemic breakdown” exception to the general rule
that we attribute delays caused by defense counsel to the defendant does not apply.
¶43 Provost relies upon State v. Serros, 366 P.3d 1121 (N.M. 2015), to
support his “systemic breakdown” argument. Provost’s reliance on that decision is
fundamentally misplaced, however, as the Serros court did not even mention
Brillon’s “systemic breakdown” exception. See Serros, 366 P.3d 1121. Instead,
the Serros court considered if Brillon’s discussion of whether defense counsel acts
as an agent of the State (in certain circumstances not at issue here), had undermined
a prior decision of the New Mexico Court of Appeals. See id. at 1134. Because the
Serros court did not even mention the “systemic breakdown” exception—and
because the same court which issued Serros actually did address that exception two
years later in Ochoa—we will not further discuss Provost’s misplaced reliance on
the Serros decision.
¶44 In sum, we uphold the circuit court’s finding of fact that the entirety
of the delay in bringing Provost to trial occurred “to accommodate Mr. Provost and
the defense.” Because we reject Provost’s arguments that we should nevertheless
attribute the delay in bringing him to trial to the State, we conclude that the reasons
for the delay weigh against a conclusion that Provost’s right to a speedy trial was
violated. See Urdahl, 286 Wis. 2d 476, ¶26.
C. The third Barker factor
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¶45 The third Barker factor directs us to consider whether the defendant
asserted his or her right to a speedy trial. See Urdahl, 286 Wis. 2d 476, ¶11. As
referenced above, Provost places much emphasis on the fact that he “explicitly
demanded a speedy trial.” He fails, however, to reconcile that assertion with the
fact that his demand was made after he himself caused his first trial date to be
removed from the court’s calendar by missing his mandatory pretrial conference.
“Though a defendant’s failure to demand a speedy trial will not constitute a waiver
of the right, the defendant’s complete failure or delay in demanding a speedy trial
will be weighed against him.” Hatcher v. State, 83 Wis. 2d 559, 568, 266 N.W.2d
320 (1978). Moreover, as the State aptly notes, once Provost actually did file his
speedy trial demand—over two years after the case was originally filed—the State
brought him to trial in less than eight months. Consequently, we conclude that this
factor does not weigh in favor of Provost’s claim that he was deprived of his right
to a speedy trial.
D. The fourth Barker factor
¶46 Finally, the fourth Barker factor directs us to consider whether
Provost was prejudiced by the delay in bringing him to trial. See Urdahl, 286
Wis. 2d 476, ¶11. When assessing this factor, we consider “the three interests that
the right to a speedy trial protects: prevention of oppressive pretrial incarceration,
prevention of anxiety and concern by the accused, and prevention of impairment of
defense.” Id., ¶34. Provost argues that each of these interests weigh in favor of his
claim that he was denied the right to a speedy trial. We address, and reject, each of
his arguments in turn.
¶47 First, Provost asserts his defense was impaired in that an “exculpatory
witness died” during the delay, which he contends is a “crucial factor” that we “must
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weigh” in his favor. We acknowledge that the death of an exculpatory witness
during a delay in bringing the defendant to trial generally weighs in favor of finding
that the defendant was prejudiced by the delay. See Barker, 407 U.S. at 532. But
here, we agree with the State that the death of Provost’s acquaintance does not weigh
heavily, if at all, in favor of finding that the delay prejudiced Provost’s ability to
present a defense.
¶48 This conclusion follows because the unexpected death of Provost’s
friend occurred less than one year after Provost was initially charged. The delay
therefore had not even reached the presumptively prejudicial stage at the time the
witness became unavailable, so we can hardly say that it was the delay which caused
the witness’s unavailability—rather, it was an unforeseen motorcycle accident.
Moreover, even if the delay did minimally contribute to the witness’s unavailability,
the fact that the delay was solely attributable to attorney Anderson’s requests for
continuances counsels against assigning much weight to any resulting prejudice.
¶49 Second, Provost argues that the delay in bringing him to trial resulted
in oppressive pretrial incarceration (i.e., the eight months he spent in jail from his
October 25, 2016 arrest until the June 29, 2017 trial). We are not persuaded. Once
again, Provost ignores the fact that it was not the State’s delay that led to the
condition of which he complains; it was his own failure to appear at the mandatory
pretrial conference. If he had so appeared, the circuit court would not have issued
a bench warrant for his arrest, and he would not have had a cash bond imposed.
Further, Provost fails to recognize that when he pled guilty to the seventh-offense
OWI and felony bail jumping counts in case No. 2015CF143 on January 19, 2017,
the court immediately revoked his bond in that case. Thus, any delay in case
No. 2014CF390 from that point forward did not cause Provost to be incarcerated
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pretrial because Provost would have remained incarcerated regardless of the status
of the proceedings in case No. 2014CF390. As such, we cannot conclude that the
delay in bringing Provost to trial caused him to suffer prejudice from “oppressive”
pretrial incarceration.
¶50 Finally, Provost asserts that the delay caused him to lose his
apartment, his job, his relationship with his children, weight, sleep, and the
opportunity to pursue college programming. More specifically, he asserts that he
suffered this “substantial stress” during the eight months that he was incarcerated.
But, as just explained, that period of incarceration was attributable to Provost’s own
actions, not to any delay caused by the State. We therefore attribute little weight to
this interest.
¶51 Ultimately, although the length of the delay in this case was
presumptively prejudicial under the first Barker factor, we conclude that the three
remaining factors do not support Provost’s argument that he was deprived of his
constitutional right to a speedy trial. We therefore decline to reverse Provost’s
conviction in case No. 2014CF390.
II. Case No. 2015CF143
¶52 Provost argues his conviction in case No. 2015CF143 must be
reversed because attorney Gramstrup provided him with ineffective assistance by
failing to collaterally attack his 1992 and 2000 OWI-related Minnesota criminal
convictions. Whether an attorney rendered ineffective assistance is a mixed
question of fact and law. State v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466,
634 N.W.2d 325. We will uphold the circuit court’s findings of fact unless they are
clearly erroneous. Id. However, whether a defendant’s proof is sufficient to
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establish ineffective assistance is a question of law that we review independently.
Id.¶53 To prevail on an ineffective assistance claim, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a
defendant fails to make a sufficient showing on one prong of the Strickland test, we
need not address the other. Id. at 697. In this case, we need not address the first
prong because, even assuming attorney Gramstrup performed deficiently, we
conclude Provost has failed to establish prejudice.
¶54 To demonstrate prejudice, a defendant must show 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. The Strickland
prejudice test is “distinct from a sufficiency of the evidence test,” and a defendant
“need not prove the outcome would ‘more likely than not’ be different in order to
establish prejudice in ineffective assistance cases.” State v. Sholar, 2018 WI 53,
¶44, 381 Wis. 2d 560, 912 N.W.2d 89.
¶55 Here, we conclude Provost has not met his burden to show that there
is a reasonable probability that the result of his plea hearing would have been
different had attorney Gramstrup collaterally attacked his 1992 and 2000 criminal
convictions. This conclusion is compelled by the fact that the State introduced
evidence of Provost’s certified driving record at the postconviction hearing, which
the circuit court found showed that the incidents that led to Provost’s convictions in
both the 1992 and 2000 cases also resulted in Provost’s driver’s license being
administratively revoked.
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¶56 As a matter of law, those two administrative revocations were
independently countable prior offenses under Wisconsin’s statutory progressive
penalty requirement for OWI-related events—even though the conviction and the
revocation arising out of the same incident, taken together, could only be considered
one countable prior offense. See WIS. STAT. § 346.65(2)(am)6.; see also City of
Cedarburg v. Hansen, 2020 WI 11, ¶16, 390 Wis. 2d 109, 938 N.W.2d 463.
Consequently, even if attorney Gramstrup had successfully collaterally attacked
Provost’s 1992 and 2000 criminal convictions, Provost would still have been
properly charged and convicted with seventh-offense OWI in case No. 2015CF143.
¶57 On appeal, Provost argues that the evidence of the administrative
revocations was “not subjected to the adversarial process” and that we should
“remand for an evidentiary hearing to determine whether the alleged Minnesota
administrative suspensions are independently countable.” In so arguing, Provost
misunderstands the nature of a postconviction claim of ineffective assistance of
counsel.
¶58 To explain, Provost relies on State v. Carter, 2010 WI 132, ¶27, 330
Wis. 2d 1, 794 N.W.2d 213, to assert that the “State bears the burden of proof” to
show that the administrative revocations are independently countable. Based on this
premise, he faults the State for not sufficiently introducing proof that the
administrative revocations were, in fact, “independently countable”—although he
agrees that the State could rely on those revocations to establish he had six countable
offenses “[i]f the record were clearer.”
¶59 Provost is correct that the Carter court held that the State bears the
burden, at sentencing, to show that prior OWI-related out-of-state administrative
revocations are countable offenses. See id., ¶¶25-27. But Provost brought his
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challenge to the amount of his prior countable offenses after sentencing, premised
on the argument that even though his record undisputedly showed six prior criminal
convictions, two of those criminal convictions could have been successfully
collaterally attacked and therefore should not have been counted.
¶60 Under the well-established Strickland framework, Provost bore the
burden at his postconviction hearing to show that the result of the proceeding against
him would have been different had attorney Gramstrup actually, and successfully,
collaterally attacked those convictions. By failing to show that the administrative
revocations, which arose out of the same incidents which led to the 1992 and 2000
criminal convictions were not independently countable, he failed to meet this
burden. Accordingly, based on Provost’s own failure to make the “record …
clearer,” we cannot conclude that Gramstrup provided him with ineffective
assistance.
By the Court.—Judgments and orders affirmed.
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