State v. Joel W. Yochum

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 31, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1598-CR Cir. Ct. No. 2022CF735

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOEL W. YOCHUM,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Waukesha County: J. ARTHUR MELVIN, III, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2023AP1598-CR

¶1 PER CURIAM. Joel W. Yochum appeals from a judgment of
conviction entered upon his no contest plea and an order denying his motion for
postconviction relief. For the following reasons, we summarily affirm.

Background

¶2 Following a traffic stop resulting in criminal charges, Yochum pled to
operating a motor vehicle with a restricted controlled substance, fifth or sixth
offense. He subsequently filed a postconviction motion to withdraw his plea,
alleging his trial counsel performed ineffectively by failing to file a motion to
suppress evidence. He specifically asserts the arresting officer (1) unlawfully
extended the stop when he began an operating while intoxicated (OWI)
investigation after concluding an investigation into possible domestic abuse and
(2) unlawfully administered a preliminary breath test (PBT) to him. He claims that
by failing to file a suppression motion on these bases, his counsel performed
deficiently and he was prejudiced by said deficiency. The circuit court denied
Yochum’s postconviction motion, determining that even if counsel had filed a
motion to suppress on these bases, the motion would have failed.

Discussion

¶3 “A defendant is entitled to withdraw a guilty plea after sentencing
only upon a showing of ‘manifest injustice’ by clear and convincing evidence.”
State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996) (citation omitted).
One way a defendant can show a manifest injustice is to demonstrate that his or her
counsel rendered ineffective assistance. State v. Taylor, 2013 WI 34, ¶49, 347
Wis. 2d 30, 829 N.W.2d 482.

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No. 2023AP1598-CR

¶4 To succeed on a claim of ineffective assistance of counsel, a defendant
must show that counsel performed deficiently and that such deficiency prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show
counsel performed deficiently, a defendant must establish that “counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” State v. Gutierrez, 2020 WI 52, ¶44, 391
Wis. 2d 799, 943 N.W.2d 870 (quoting Strickland, 466 U.S. at 687). To show
prejudice in the context of a request for plea withdrawal, a defendant must
demonstrate “that there is a reasonable probability that, but for the counsel’s errors,
[the defendant] would not have pleaded [no contest] and would have insisted on
going to trial.” Bentley, 201 Wis. 2d at 312 (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). “Where the [defendant] fails to satisfy either prong of the ineffective
assistance of counsel analysis [the appellate court] need not consider the other.”
State v. Breitzman, 2017 WI 100, ¶81, 378 Wis. 2d 431, 904 N.W.2d 93.

¶5 Our review of an ineffective assistance of counsel claim presents a
mixed question of fact and law. Gutierrez, 391 Wis. 2d 799, ¶19. We uphold the
circuit court’s findings of fact unless they are clearly erroneous. Id. However,
“[w]hether counsel’s performance satisfies the constitutional standard for
ineffective assistance of counsel is a question of law we review de novo.” Id.

¶6 Here, we agree with the circuit court that the suppression motion
Yochum claims his counsel should have filed would have failed. As a result,
Yochum has not established that counsel performed deficiently because it is not
deficient performance to fail to file a meritless motion. See State v. Dalton, 2018
WI 85, ¶53, 383 Wis. 2d 147, 914 N.W.2d 120.

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No. 2023AP1598-CR

¶7 “A law enforcement officer may detain an individual for investigative
purposes if reasonable suspicion ... of criminal activity exists.” State v. Rose, 2018
WI App 5, ¶14, 379 Wis. 2d 664, 907 N.W.2d 463 (2017). Reasonable suspicion
requires that an officer have more than just an “inchoate and unparticularized
suspicion or ‘hunch,’” State v. Post, 2007 WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d
634 (citation omitted); rather, an officer must possess specific and articulable facts
which, taken together with rational inferences from those facts, warrant a reasonable
belief that the person being stopped has committed, is committing, or is about to
commit an offense, id., ¶¶10, 13. In determining whether an officer had reasonable
suspicion, we must consider what a reasonable officer would have reasonably
suspected given his or her training and experience. State v. Waldner, 206 Wis. 2d
51, 56, 556 N.W.2d 681 (1996). We must look at the totality of the circumstances,
and as facts accumulate, reasonable inferences about their cumulative effect can be
drawn. Id. at 58.

¶8 Yochum does not challenge the officer’s initial stop of his vehicle to
investigate possible domestic abuse. He claims, however, that the officer
unlawfully extended the traffic stop when he began the OWI investigation. To
lawfully extend a traffic stop for a new investigation, an officer must have
reasonable suspicion that a separate violation has occurred. See State v. Colstad,
2003 WI App 25, ¶19, 260 Wis. 2d 406, 659 N.W.2d 394. Here, the officer had
reasonable suspicion.

¶9 The complaint and preliminary hearing testimony reveal the following
undisputed, relevant facts. Police performed a traffic stop on Yochum after
receiving a report that a concerned citizen had observed him swerving “all over the
road” and him and a female in the vehicle yelling at each other. Police on the scene
began a domestic abuse investigation, but in speaking with Yochum, Officer Erik

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No. 2023AP1598-CR

Michalsen noted an odor of intoxicants emitting from him. Yochum stated he had
been at Potawatomi Casino and did “a little bit of gambling and had some lunch and
some drinks.” Yochum stated he had had a Bloody Mary but that was the only drink
he consumed. The officer learned that due to multiple prior OWI convictions,
Yochum could not lawfully drive a motor vehicle with a blood alcohol concentration
(BAC) above .02.

¶10 After learning of Yochum’s .02 restriction, the officer began an OWI
investigation, starting with field sobriety tests (FSTs). On the horizontal gaze
nystagmus test, the officer observed four out of six possible clues of intoxication in
Yochum’s eyes; he observed no clues on the walk-and-turn test; and observed
several clues on the one-legged-stand test, specifically that Yochum used his arms
for balance, lifting them away from his sides approximately eight to ten inches, and
swayed during the test. The officer then administered a PBT to Yochum, which
produced a result of .036 BAC. The officer placed Yochum under arrest, leading to
the criminal charges against him.

¶11 At the time the officer extended the traffic stop to conduct an OWI-
related investigation, he was aware that a concerned citizen had reported that
Yochum had been swerving “all over the road,”1 the officer smelled alcohol
emanating from Yochum when the officer spoke with him, and Yochum admitted
having been gambling at a casino—an establishment commonly known as a place
where alcohol is consumed—and consuming alcohol there. The officer additionally

1
While a reasonable officer could have reasonably concluded Yochum had been swerving
“all over the road” due to some reason other than intoxication, an officer would not be obligated to
reach that conclusion as to the cause of the swerving. See State v. Waldner, 206 Wis. 2d 51, 59,
556 N.W.2d 681 (1996) (stating “police officers are not required to rule out the possibility of
innocent behavior before initiating a brief stop”). A reasonable officer alternatively could have
reasonably concluded that the swerving was caused by one or more intoxicating substances in
Yochum’s system.

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No. 2023AP1598-CR

learned that Yochum could not be lawfully driving with a BAC above .02, a very
low level. The swerving, the smell of alcohol, and the admission of consuming
alcohol at a casino easily provided reasonable suspicion that Yochum had been
operating his vehicle with a BAC of .02 or greater.

¶12 As to Yochum’s challenge to the administration of the PBT, we
observe that when the officer administered it to Yochum, in addition to the identified
facts supporting reasonable suspicion, the officer had observed four out of six
possible clues of intoxication on the HGN test and several clues of intoxication on
the one-legged-stand test. The question before the officer, however, was not just
whether Yochum was operating his vehicle while intoxicated/impaired but also
whether he was operating his vehicle with a BAC of .02 or greater—a much lower
violation threshold. The requisite probable cause to administer a PBT to a suspect
is lower than the probable cause needed to arrest a person. See State v. Blatterman,
2015 WI 46, ¶76 n.29, 362 Wis. 2d 138, 864 N.W.2d 26 (“Probable cause to request
a PBT requires ‘a quantum of proof that is … less than the level of proof required
to establish probable cause for arrest.’” (citation omitted)). Even before
administering the FSTs to Yochum, the officer had probable cause to administer the
PBT; the FSTs just added yet more evidence that Yochum had been operating his
vehicle with a BAC level above .02. The resulting PBT reading of .036 added even
more evidence that he had violated his .02 restriction, easily providing the necessary
probable cause to arrest.

¶13 For the foregoing reasons, we conclude that had trial counsel filed the
suppression motion Yochum claims he should have filed, it would have failed.
Because of this, counsel did not perform deficiently by failing to file a suppression
motion. See Dalton, 383 Wis. 2d 147, ¶53. Thus, we affirm the judgment of

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No. 2023AP1598-CR

conviction and the circuit court’s denial of Yochum’s motion to withdraw his plea
based on ineffective assistance.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2021-22).

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