State v. Teresa Ann Patriquin

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, 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 No. 2019AP169-CR Cir. Ct. No. 2016CF1658

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TERESA ANN PATRIQUIN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: MARC A. HAMMER, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Teresa Patriquin appeals from an amended
judgment convicting her, based upon a no-contest plea, of possession of
No. 2019AP169-CR

amphetamine with intent to deliver (>50g), as a party to the crime, and from an
order denying her postconviction motion for resentencing. Patriquin contends she
was denied due process because she was not fully informed about the contents of
the presentence investigation report (PSI) prior to her sentencing. She also argues
her trial counsel provided ineffective assistance in several related respects. We
affirm.

BACKGROUND

¶2 Patriquin entered a no-contest plea to the amphetamine charge in this
case in exchange for the dismissal of four other drug-related charges, which were
read in at sentencing. The circuit court ordered a PSI. The PSI noted that the
charges arose from an investigation by the Brown County Drug Task Force that
included a search of a motel room occupied by Patriquin, Tabitha Garczynski, and
Mary Perez. Task force members discovered 5.10 grams of amphetamine, 0.74
grams of methamphetamine, 13.13 grams of marijuana, 4.39 grams of psilocybin
mushrooms, and various prescription medications in the motel room.
Accompanying drug enforcement agency agents recovered an additional 250.01
grams of methamphetamine.

¶3 Patriquin gave a statement to police in which she admitted recently
having an “Asian Milwaukee” source of supply for methamphetamine and also
having traveled to California on one occasion to obtain some methamphetamine.
In addition, Patriquin had sold methamphetamine in the past for her father and
nine brothers who cooked it.

¶4 Patriquin told the PSI author she had been off drugs since 2006, until
she relapsed around Thanksgiving in 2015 and began selling small amounts of
methamphetamine to support her habit. Patriquin said she believed that

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Garczynski, who was one of her suppliers, had been involved in selling much
greater quantities, and she asserted that the majority of the methamphetamine
recovered from the motel room actually belonged to Garczynski.

¶5 The PSI author also contacted a member of the drug task force, who
noted that the seizure of methamphetamine from Patriquin’s motel room was one
of the biggest ever made in Brown County at that time. The task force member
described Patriquin as having been “very involved in a very high level of
methamphetamine distribution” by booking flights and rental cars for another
woman, Vanessa Ramirez, who traveled to California to bring back
methamphetamine. After Ramirez was robbed of her methamphetamine supply,
Patriquin “hooked up with an Asian group” for whom she would sell a pound of
methamphetamine at a time, and to whom she introduced Garczynski. The task
force member further said he felt a ten-year period of incarceration would be
appropriate for Patriquin, in line with the State’s recommendation.

¶6 The circuit court sentenced Patriquin to eight years of initial
confinement and six years of extended supervision. Patriquin moved for
resentencing based upon alleged violations of her rights to due process and to the
effective assistance of trial counsel. The motion was accompanied by an affidavit
averring that Patriquin’s trial counsel had not provided her with a copy of the PSI
prior to sentencing, and that the PSI contained a number of factual errors regarding
the amount and ownership of the drugs recovered from Patriquin’s motel room, as
well as Patriquin’s role in the drug trafficking operation. Patriquin sought a
hearing at which she could challenge the alleged inaccuracies in the PSI and be
resentenced based upon a redacted PSI.

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¶7 The circuit court held a postconviction hearing at which both
Patriquin and her trial counsel testified. Patriquin reiterated the allegations she
had made in her motion and affidavit. Counsel confirmed that he had not provided
Patriquin with a copy of the PSI. He said he had reviewed the PSI with Patriquin
over the phone, giving her a “full picture” of the information it contained, but he
had not read it to her “word for word.” He believed much of the information in
the PSI was an accurate representation of information from Patriquin’s own
statement to police, but he stated the PSI also included unverified and unwarranted
conclusions made by law enforcement as to Patriquin’s role in the drug trafficking
operation. Counsel said he discussed with Patriquin the investigator’s assessment
of Patriquin’s role and sentence recommendation set forth in the PSI, and told her
he would handle them through argument at sentencing, which he did.

¶8 The circuit court treated Patriquin’s motion as alleging that she had
been sentenced on inaccurate information without having been given a fair
opportunity to rebut it. However, a member of the drug task force had testified at
the sentencing hearing about Patriquin’s role in the drug trafficking operation and
made assertions similar to those that had been made in the PSI. The court noted
that Patriquin’s trial counsel had cross-examined the task force member about
Patriquin’s role—including emphasizing the lack of corroborating evidence such
as controlled drug buys or text messages that could have shown that Patriquin was
involved in dealing significant amounts.

¶9 Additionally, the circuit court emphasized that Patriquin had not
disputed the descriptions by either the task force member or the prosecutor about
her drug trafficking activities during her own allocution. The court also stated that
it was aware, at the time of the sentencing, that not all of the methamphetamine
recovered from Patriquin’s motel room belonged to her and that it did not believe

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Patriquin was the mastermind of the operation or that she orchestrated significant
out-of-state transactions. Nonetheless, the court stated it was satisfied that the
drugs in Patriquin’s possession were not solely for personal use. The court
concluded that while the contentions in the PSI about Patriquin’s role in the drug
trafficking organization might have been based upon disputed inferences,
Patriquin had not shown that the court actually relied on any inaccurate facts when
imposing her sentence. The court denied Patriquin’s postconviction motion, and
she now appeals.

DISCUSSION

I. Due Process

¶10 Patriquin first argues that she was denied due process when her
attorney failed to allow her to review the PSI in its entirety prior to sentencing.
However, due process was satisfied once counsel was provided a copy of the PSI.
State v. Flores, 158 Wis. 2d 636, 643 n.3, 462 N.W.2d 899 (Ct. App. 1990),
overruled on other grounds by State v. Knight, 168 Wis. 2d 509, 519 & n.6, 484
N.W.2d 540 (1992). Therefore, we will review counsel’s failure to provide
Patriquin with a copy of the PSI only in the context of her ineffective assistance
claim.

II. Ineffective Assistance

¶11 To establish a claim of ineffective assistance of counsel, a defendant
must prove two elements: (1) deficient performance by counsel; and (2) prejudice
resulting from that deficient performance. State v. Sholar, 2018 WI 53, ¶32, 381
Wis. 2d 560, 912 N.W.2d 89. We will not set aside the circuit court’s factual
findings about what actions counsel took or the reasons for them unless they are

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clearly erroneous. See State v. Balliette, 2011 WI 79, ¶19, 336 Wis. 2d 358, 805
N.W.2d 334. However, whether counsel’s conduct violated the constitutional
standard for effective assistance is ultimately a legal determination that this court
decides independently. See id. We need not address both elements of the test if
the defendant fails to make a sufficient showing on one of them. State v. Swinson,
2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12.

¶12 In order to demonstrate deficient performance, a defendant must
overcome a presumption that counsel’s actions fell within a wide range of
professional conduct. Strickland v. Washington, 466 U.S. 668, 689 (1984).
Reasonable strategic choices informed by counsel’s investigation of the law and
facts are virtually unchallengeable on appeal. Id. at 690. A defendant proves
prejudice by demonstrating there is a reasonable probability that, but for counsel’s
unprofessional conduct, the result of the proceeding—in this case, the sentencing
hearing—would have been different. Id. at 694. The “reasonable probability”
standard does not require a showing that it is “more likely than not” that a jury
would have acquitted the defendant. Sholar, 381 Wis. 2d 560, ¶44. Still, the
“reasonable probability” standard is tied to the reviewing court’s confidence in the
outcome, and the “likelihood of a different result must be substantial, not just
conceivable.” Id., ¶45; State v. Langlois, 2017 WI App 44, ¶20, 377 Wis. 2d 302,
901 N.W.2d 768 (citation omitted).

¶13 Patriquin contends her trial counsel provided ineffective assistance
by failing to: (1) provide her with a copy of the PSI or to read it to her verbatim;
(2) request a hearing to resolve disputed information in the PSI prior to
sentencing; (3) move to strike the sentencing recommendation made by law
enforcement in the PSI; (4) consult with Patriquin prior to her PSI interview and
advise her how to address inculpatory statements she had made to law

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enforcement; and (5) present information from Garczynski’s sentencing hearing
that would have buttressed Patriquin’s claim that the majority of the drugs seized
in Patriquin’s motel room actually belonged to Garczynski. We reject each of
these contentions.

¶14 First, we conclude Patriquin has failed to demonstrate she was
prejudiced by her trial counsel’s failure to provide her with a copy of the PSI.
Patriquin was put on notice about the general content of the PSI—including law
enforcement’s disputed conclusions about Patriquin’s role in the drug trafficking
operation—through counsel’s description of the PSI to her, her access to prior
discovery materials upon which the disputed PSI statements were based, and the
testimony of the drug force task member at sentencing. Patriquin’s trial counsel
argued at sentencing against the inferences that had been drawn by law
enforcement about Patriquin’s level of involvement in the drug trafficking
operation, and the circuit court did not assume that all of the drugs in the motel
room belonged to Patriquin or that Patriquin was involved in any significant
out-of-state trafficking. The court reasonably determined that Patriquin did not
present any new evidence at the postconviction hearing that would have changed
the court’s view of Patriquin’s role in the organization or affected its sentencing
decision.

¶15 Second, we are satisfied that it was a reasonable strategic decision to
challenge the inferences made by law enforcement through argument at the
sentencing hearing rather than by requesting a separate evidentiary hearing.
Counsel explained that he did not want to try to undermine the PSI too much
because its ultimate recommendation was favorable to Patriquin. Excessive
challenges to the PSI might also have undermined Patriquin’s full acceptance of
responsibility. Moreover, Patriquin was not prejudiced by the lack of a

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presentence evidentiary hearing because, as we have just discussed above, she did
not present any new evidence at the postconviction hearing that likely would have
altered her sentence.

¶16 Third, Patriquin faults counsel for failing to move to strike the task
force member’s sentence recommendation from the PSI. However, she provides
no citation to legal authority supporting her contention that the recommendation
was improper, nor does she materially develop any argument in this regard. This
is not a situation in which a sentence recommendation by law enforcement
differed from the State’s negotiated recommendation and thus breached a plea
agreement. Cf. State v. Matson, 2003 WI App 253, ¶26, 268 Wis. 2d 725, 674
N.W.2d 51. Counsel does not perform deficiently by failing to bring a meritless
motion. State v. Sanders, 2018 WI 51, ¶29, 381 Wis. 2d 522, 912 N.W.2d 16.

¶17 As to trial counsel’s failure to consult with Patriquin before her PSI
interview, there was no deficient performance because counsel had no duty to do
so. See State v. Knapp, 111 Wis. 2d 380, 385, 330 N.W.2d 242 (Ct. App. 1983).
Patriquin has also failed to demonstrate prejudice because she was already aware
from discovery materials that law enforcement viewed her as being highly
involved in the drug trafficking operation, based in part upon her own statement.
If she wished to clarify or disavow any part of that statement, she could rely on her
own knowledge of events to do so.

¶18 Finally, Patriquin complains that her trial counsel failed to review
the transcript from Garczynski’s sentencing hearing prior to Patriquin’s
sentencing. We note that Patriquin did not clearly articulate or develop this
argument before the circuit court. Even assuming the argument was not forfeited,
we conclude that, once again, Patriquin has failed to demonstrate prejudice from

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No. 2019AP169-CR

counsel’s alleged omission. Patriquin was not mentioned during Garczynski’s
sentencing hearing, and Patriquin has not shown that anything said at Garczynski’s
sentencing would have been likely to affect Patriquin’s sentence. Again, the court
stated at the postconviction motion hearing that it did not believe Patriquin was the
mastermind of the operation.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2017-18).

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