State v. John Flasko Phillips

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.
July 30, 2019
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. 2018AP537-CR Cir. Ct. No. 2013CF3828

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN FLASKO PHILLIPS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DANIEL L. KONKOL and MARK A. SANDERS, Judges.
Affirmed.

Before Brash, P.J., Kessler and Dugan, 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. 2018AP537-CR

¶1 PER CURIAM. John Flasko Phillips appeals a judgment convicting
him of second-degree reckless homicide, as a party to a crime. Phillips also
appeals an order denying his postconviction motion seeking plea withdrawal on
the ground that he received ineffective assistance of trial counsel.1 Phillips argues
that Thomas Harris, his trial lawyer, materially misrepresented the strength of the
State’s case causing him to enter a guilty plea. We affirm.

¶2 On the day the trial was scheduled to begin, Phillips pled guilty to a
reduced charge of second-degree reckless homicide, as a party to a crime. He was
sentenced to twelve years of initial confinement and five years of extended
supervision. Phillips moved for postconviction relief, arguing that he should be
allowed to withdraw his plea because Attorney Harris materially misled him in
two respects, which caused him to enter his plea. First, Phillips argued that
Attorney Harris told him that Phillips’s personal friend, James Marable, was
present on the day of trial and would testify for the State that Phillips admitted to
him that Phillips committed the crime. Phillips asserted that after he entered the
plea, he learned that Marable had not, in fact, been present for trial. Second,
Phillips argued Attorney Harris made him a promise that he would receive no
more than seven or eight years of initial confinement to run concurrently to the six
years of revocation time he was currently serving.2 After an evidentiary hearing,
the trial court denied the motion.

1
The Honorable Daniel L. Konkol presided over the plea and sentencing proceedings.
The Honorable Mark A. Sanders presided over the postconviction motion proceedings.
2
Phillips has not pursued this argument on appeal.

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No. 2018AP537-CR

¶3 “When a defendant seeks to withdraw a guilty plea after sentencing,
he must prove, by clear and convincing evidence, that a refusal to allow
withdrawal of the plea would result in ‘manifest injustice.’” State v. Taylor, 2013
WI 34, ¶24, 347 Wis. 2d 30, 829 N.W.2d 482 (citations omitted). A manifest
injustice occurs if the defendant was denied the effective assistance of counsel.
State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44. When we
review the circuit court’s findings of evidentiary or historical fact “we apply a
deferential, clearly erroneous standard[.]” See State v. Jenkins, 2007 WI 96, ¶33,
303 Wis. 2d 157, 736 N.W.2d 24. “The standard also applies to credibility
determinations.” Id. “When the circuit court acts as the finder of fact, it is the
ultimate arbiter of the credibility of the witnesses and the weight to be given to
each witness’s testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App
207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345. “The reason for this rule is that the
trier of fact had the opportunity to observe the witnesses and their demeanor.” Id.

¶4 Five witnesses testified at the postconviction evidentiary hearing,
which was held three and one-half years after sentencing. Attorney Harris
testified that he had no recollection of talking to Phillips about Marable on the day
of the plea. He testified that he would not tell a client that a witness was present if
he did not know for a fact that the witness was present, and that he has never told a
client that he could guarantee a sentencing outcome. In addition, Attorney Harris
testified that he could not recall what made Phillips change his mind about going
to trial, but he remembered that the police had a video of Phillips wearing jeans
that had an unusual external pocket, that Phillips was arrested wearing jeans with
the same type of external pocket, and that Phillips’s fingerprints were found on a
gun located near the homicide. Attorney Harris also testified that the State offered
to drop the felon in possession of a firearm charge and reduce the charge of first-

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No. 2018AP537-CR

degree reckless homicide while armed to second-degree reckless homicide, as a
party to a crime, if Phillips entered a plea.

¶5 James Marable testified that he was not present in court the day trial
was scheduled and had not been subpoenaed for trial.

¶6 Detective Keith Kopcha testified that he was one of the lead
detectives in the case and that the primary evidence implicating Phillips was his
fingerprint on the magazine inside of the murder weapon, which was found at the
scene, cell phone records showing that he was in the area where the homicide
occurred, and video evidence showing that the suspect, whose profile is consistent
with Phillips’s profile, was wearing a unique style of jeans with a pocket hanging
from the outside, which were similar to the jeans Phillips was wearing when he
was arrested. Detective Kopcha also testified that Marable told the police that
Phillips told him that the crime was not “supposed to go down like that,” and that
the State planned to call Marable at trial but had been unable to locate him.

¶7 Betty Dooley, Phillips’s sister, testified that Attorney Harris told her
that Marable was present and ready to testify against Phillips on the day of the
trial, although she did not know what Marable would testify about or the evidence
against her brother. She further testified that Attorney Harris told her and her
family that he told Phillips not to go to trial because Marable was ready to testify
against him.

¶8 Phillips testified that Attorney Harris told him that Marable was
present three different times on the day of trial. Phillips testified that Marable’s
presence caused him to enter a plea because Marable had known him for twenty
years, so Marable’s testimony that he admitted killing the victim would have been
very damaging. Phillips further testified that Attorney Harris promised him he

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No. 2018AP537-CR

would receive no more that seven or eight years of initial confinement, to run
concurrently.

¶9 The circuit court found Attorney Harris’s testimony that he had no
recollection of whether he discussed Marable with Phillips to be credible. The
circuit court found Marable’s testimony that he was not present and had not been
subpoenaed for trial to be credible. The circuit court found the testimony of
Dooley, Phillips’s sister, to be generally credible, although the court said that at
times her testimony undermined her credibility. Nevertheless, the circuit court
accepted her testimony that on the day of trial, there was a conversation between
her and Attorney Harris, and after that conversation she believed that Marable was
present. The circuit court found that Phillips was not a credible witness because
he previously lied to the court during the plea colloquy and had an even greater
incentive to lie regarding his lawyer’s conduct during the postconviction motion
hearing, so that he could withdraw his plea.

¶10 As we previously explained, the circuit court is the arbiter of witness
credibility. See Peppertree Resort Villas, Inc., 257 Wis. 2d 421, ¶19. Based on
the circuit court’s credibility findings, the circuit court found as a matter of fact
that Phillips did not show that Attorney Harris misled him. This finding is not
clearly erroneous because the circuit court disregarded Phillips’s testimony as not
credible. The only evidence deemed credible by the circuit court tending to show
that Attorney Harris misinformed Phillips was Dooley’s testimony. But Dooley
did not testify that she witnessed Attorney Harris tell Phillips that Marable was
present. Dooley testified that Attorney Harris told her that Marable was present
and told her that he advised Phillips that Marable was present to testify against
him. Because the circuit court disregarded Phillips’s testimony, the circuit court
reasonably concluded that Phillips’s primary motivation in entering his plea was to

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No. 2018AP537-CR

reduce his prison exposure, especially because there was significant evidence
against Phillips that had nothing to do with Marable. Because Phillips did not
show that Attorney Harris misrepresented the strength of the State’s case, causing
him to plead guilty, the circuit court properly denied the postconviction motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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