State v. Avery L. Applewhite

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 23, 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 No. 2020AP683-CR Cir. Ct. No. 2016CF365

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

AVERY L. APPLEWHITE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Manitowoc County: JERILYN M. DIETZ, Judge. Affirmed.

Before Reilly, P.J., Gundrum and Davis, 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. 2020AP683-CR

¶1 PER CURIAM. Avery L. Applewhite appeals from a judgment of
conviction and an order denying his postconviction motion. He asserts that the
circuit court erred in denying his request for plea withdrawal, which was based on
alleged ineffective assistance of counsel. He contends his trial counsel performed
ineffectively by not moving to dismiss the charges against him on the ground that
his constitutional right to a speedy trial was violated. For the following reasons,
we affirm.

¶2 To withdraw a plea following sentencing, a defendant bears the
burden of showing “by clear and convincing evidence that a refusal to allow
withdrawal of the plea would result in manifest injustice.” State v. Dillard, 2014
WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44. Establishing that counsel
provided ineffective assistance is one way to demonstrate a manifest injustice. Id.,
¶84. Ineffective assistance of counsel requires proof that counsel’s performance
was deficient and the deficient performance prejudiced the defendant. Strickland
v. Washington, 466 U.S. 668, 687 (1984). “A determination regarding the
effectiveness of counsel involves a mixed question of fact and law. We will
uphold factual determinations of the circuit court unless they are clearly
erroneous; however, whether trial counsel’s performance was deficient and
prejudiced the defendant are questions of law we review de novo.” State v. Floyd,
2016 WI App 64, ¶23, 371 Wis. 2d 404, 885 N.W.2d 156 (citation omitted).
“Whether a defendant has been denied his constitutional right to a speedy trial
[also] presents a question of law, which this court reviews de novo, while
accepting any findings of fact made by the circuit court unless they are clearly
erroneous.” State v. Urdahl, 2005 WI App 191, ¶10, 286 Wis. 2d 476, 704
N.W.2d 324.

2
No. 2020AP683-CR

¶3 “[T]o determine whether an accused’s right to a speedy trial has
been violated … we use [a] four-part balancing test ….” Id., ¶11. We must
consider and balance “(1) the length of delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right; and (4) prejudice to the defendant.” Id. (citing
Barker v. Wingo, 407 U.S. 514, 530 (1972)). As we have stated,

[t]he 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. Essentially,
the 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., ¶11 (citation omitted).

¶4 Related to the first consideration—“the length of delay”—we note
that

[g]enerally, a post-accusation delay approaching one year is
considered to be presumptively prejudicial. If the delay is
presumptively prejudicial, the length of delay is one factor
in the four-part balancing test. As one of the four factors in
the balancing test, the court considers “the extent to which
the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.”

Id., ¶12 (citations omitted). Here, 944 days, or approximately two years and seven
months, passed between Applewhite’s June 8, 2016 arrest and jailing and his
January 8, 2019 plea. Because that time exceeds one year, we begin with a
presumption of prejudice, and we note that this length of time stretches well-
beyond “the bare minimum needed to trigger judicial examination of the claim,”
especially since Applewhite’s drug-dealing and bail jumping charges in this case
were not particularly complex. See id., ¶12.

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No. 2020AP683-CR

¶5 We next consider the “reason[s] for the delay.” Id., ¶11. With this,
we

first identify the reason for each particular portion of the
delay and accord different treatment to each category of
reasons. 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., ¶26 (citations omitted).

¶6 Applewhite was arrested and jailed on June 8, 2016, and this matter
was scheduled for a tentative plea hearing on March 24, 2017. Instead of
pleading, however, Applewhite requested that his attorney withdraw from the
case, causing the tentative plea date to be rescheduled to May 26, 2017. At the
May 26, 2017 hearing, it was learned that while Applewhite desired to be
represented by new counsel, he had not secured new counsel or even contacted the
public defender’s office to request counsel. At that hearing, upon the circuit
court’s prompting, Applewhite indicated that he would contact the public
defender’s office “like today.” The tentative plea date was rescheduled to June 23,
2017. By the hearing of June 23, 2017, and a subsequent one on July 14, 2017,
Applewhite still had not secured new counsel, but he gave some indication at each
of these two hearings of a desire to advance his case by proceeding pro se instead
of seeking new counsel. Prodded by the circuit court, Applewhite did procure new
counsel by the time of the August 2, 2017 hearing, the same counsel who
Applewhite now claims was ineffective.

4
No. 2020AP683-CR

¶7 Because Applewhite’s dismissal of his counsel on March 24, 2017,
and his failure to act to secure new counsel or advance the case pro se between
that date and June 23, 2017, constituted delays “caused by the defendant,” those
ninety-one days cannot be counted against the State, and we subtract them from
the 944, totaling 853 days.1 As for the time from June 23, 2017, to August 2,
2017, a review of the record reveals that that forty-day period of delay appears to
have been prompted by the court’s strong encouragement that Applewhite secure
counsel instead of proceeding pro se, even though Applewhite indicated some
desire to proceed pro se. We do count this time against the State, but not heavily
so since there was no deliberate attempt by the State to hamper the defense.

¶8 Trial was set for October 9, 2017. On September 12, the State
requested that the trial date be adjourned due to the Wisconsin Crime Lab being
“unable to process the drugs in the time frame allotted prior to the jury trial.” The
next day Applewhite filed his speedy trial demand and objection to the
adjournment request. The trial was reset for November 28, 2017; however, on
September 28, 2017, Applewhite requested a substitution of judge, resulting in the
trial being rescheduled from November 28, 2017, to December 13, 2017. Because
Applewhite caused the delay from November 28, 2017, to December 13, 2017,
this fifteen-day period should not be counted against the State. Subtracting those
fifteen days from the 853, gives 838 countable days. Because we view the
adjournment of the trial from October 9, 2017, to November 28, 2017, caused by
delays at the crime lab, as akin to delays caused by “overcrowded courts,” we
count this delay against the State, but not heavily so, again, because there is no

1
In his brief-in-chief, Applewhite admits that he “dragged his feet in seeking”
replacement counsel and further states that “the 13 months after [his June 8, 2016] arrest saw
timely litigation and delays he caused, so they aren’t chargeable to the State.”

5
No. 2020AP683-CR

indication of any “deliberate attempt by the government to delay the trial in order
to hamper the defense.” See Urdahl, 286 Wis. 2d 476, ¶26.

¶9 On the morning of the scheduled trial, December 13, 2017, the State
informed the circuit court and Applewhite that it only had test results related to
two of the three “controlled buys” underlying Applewhite’s criminal charges and
that the one absent test result was due to a mistake between the State and the metro
drug unit. The State then offered to proceed to trial on only the two controlled-
buy counts and their four corresponding bail jumping charges and have the other
controlled-buy charge and two related bail jumping counts dismissed without
prejudice or severed for a separate trial. Applewhite balked at the State’s
suggestions and instead insisted that the State try him on all nine charges together.
In doing so, he knowingly accepted that the trial would then have to be held, as the
court emphasized to him, “at a later date.” Applewhite did not seek dismissal of
any charges based upon his speedy trial request, but instead focused exclusively
on getting released from custody on signature bond. The court honored
Applewhite’s requests, rescheduling the trial to March 22, 2018, and modifying
Applewhite’s cash bond to a signature bond, resulting in his release from custody.

¶10 Because Applewhite could have chosen to have six of the charges
resolved by trial on December 13, 2017, with the three others dismissed without
prejudice, the trial delay was caused, at least in part, by him. Thus, we question
whether these ninety-nine days should be counted against the State. Nonetheless,
for the sake of erring on the side of Applewhite, and because we must presume the
trial otherwise would have gone forward on December 13, 2017, if the mistake
had not occurred between the State and the metro drug unit, we do count this trial
delay against the State. The countable days remain at 838.

6
No. 2020AP683-CR

¶11 The unchallenged testimony of Applewhite’s trial counsel at the
postconviction hearing was that, prior to the March 22, 2018 trial date, Applewhite
asked counsel “if the trial could be moved because he wanted to spend time with
his, I believe, it was his daughter’s birthday.”2 Counsel added that he “was able to
find a reason why [he] might need more time,” adding that he then requested an
adjournment of the trial on the basis that he “wanted more time to look into” an
additional witness on the State’s witness list that he had not previously noticed.
Three days before trial, on March 19, 2018, the circuit court granted Applewhite’s
adjournment request and rescheduled the trial to September 19, 2018. This 181-
day delay from March 22, 2018, to September 19, 2018, was caused by
Applewhite and cannot be counted against the State, so the number of countable
days is reduced from 838 to 657.3

¶12 On March 20, 2018, the day after Applewhite’s adjournment request
was granted, the State informed the court that a key witness—a State Crime Lab
analyst—would be on leave and thus unavailable for the scheduled
September 19, 2018 trial date, so the trial was reset to October 3, 2018. This
additional fifteen-day delay is not counted against the State as Urdahl holds that
“delay … caused by something intrinsic to the case, such as witness unavailability
… is not counted.” See id. Thus, 657 days becomes 642 days.

2
Additionally, the circuit court made the finding that counsel testified “credibly” and
“consistently with the court record” at the postconviction hearing and that the March 22, 2018
“trial was adjourned at the defendant’s request, demonstrating that he was not eager to proceed to
trial and wasn’t bothered by the delays, much less prejudiced by them.”
3
Applewhite acknowledges in his brief-in-chief that this “six-month delay ... isn’t
chargeable to the [S]tate.”

7
No. 2020AP683-CR

¶13 Prior to a September 13, 2018 pretrial conference, Applewhite was
arrested, charged, and held in the Sheboygan County jail on a separate case.
Additionally, Applewhite was scheduled to go to trial on two different Sheboygan
County cases on the same day as he was scheduled to go to trial on the Manitowoc
County charges in this case, October 3, 2018.

¶14 At the pretrial conference, the circuit court resolved the trial-date
conflict by adjourning the trial in this case to January 2019, indicating that the
court was giving the Sheboygan trial precedence because Applewhite was
currently in custody in that county and those related Sheboygan County charges
were “older” than the charges in this case. Prior to the scheduled trial in January
2019, Applewhite pled, on January 8, 2019, to the single count of delivering
cocaine that is at issue in this appeal. We do not count this ninety-seven-day
delay, from October 3, 2018, to January 8, 2019, against the State because it was
“caused by something intrinsic to the case”—Applewhite had trials scheduled for
the same day in two different counties. Furthermore, the fact that Applewhite was
in custody in the Sheboygan County jail instead of remaining free on his
Manitowoc County signature bond was in no way due to negligence by the State
or overcrowded courts much less a deliberate attempt by the State to hamper
Applewhite’s defense. See id. The countable number of days is reduced further to
545.4

¶15 As indicated, none of this 545-day period was due to “[a] deliberate
attempt by the government to delay the trial in order to hamper the defense.” Id.

4
Even if we did count these ninety-seven days against the State, it would not alter our
final balancing analysis, as the delay related to these days would be weighted so minimally
against the State.

8
No. 2020AP683-CR

As a result, none of this nearly one year and six month period is weighted heavily
against the State. See id. Indeed, much of this period is simply part of “the bare
minimum needed to trigger judicial examination” of the charges. See id., ¶12.
That said, we will consider all of this nearly eighteen-month period as being
weighted, modestly, against the State.

¶16 We next consider the third part of the balancing test, Applewhite’s
“assertion of his [speedy trial] right.” See id., ¶11. Despite sitting in jail the entire
time, Applewhite did not assert his right to a speedy trial until
September 13, 2017, more than fifteen months after arrest. He successfully
leveraged that speedy trial request to secure his release on signature bond three
months later, on December 14, 2017, but made no argument for dismissal of the
charges against him due to the failure to bring him to trial more speedily. At the
postconviction hearing, trial counsel confirmed that after Applewhite was released
from custody on that date, he never asked counsel to file another speedy trial
demand in this case. Indeed, the speedy trial issue was never again raised
preconviction, and instead of proceeding to trial at the next scheduled trial date of
March 22, 2018, Applewhite sought an adjournment of the trial due to his
daughter’s birthday, which resulted in the trial date being moved back six more
months. As the circuit court stated it, this adjournment request following
Applewhite’s December 14, 2017 release indicated that Applewhite’s “interests
had changed.”

¶17 As to the final factor, prejudice, “[c]ourts consider [this element]
with reference to 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. The latter
interest is the most significant because “the inability of a defendant [to] adequately

9
No. 2020AP683-CR

… prepare his case skews the fairness of the entire system.” Id. (alteration in
original; citation omitted).

¶18 With regard to the first two interests, Applewhite was confined on
the charges in this case for more than a year and one-half before he was released
on a signature bond. While he repeatedly attempted to get his bond lowered
and/or reduced to a signature bond, obviously demonstrating his desire to be
released from jail confinement, he did not file his speedy trial demand until fifteen
months into his confinement. Moreover, for months he demonstrated no sense of
urgency as he sat confined yet did not contact the public defender’s office to try to
advance his case or his pretrial release. After he was released on signature bond in
December 2017, he never again raised the speedy trial issue preconviction, and he
even sought to adjourn the March 2018 trial date because of his daughter’s
birthday. Applewhite’s actions suggest limited “anxiety” or “concern” that the
charges against him remained pending; his main concern simply being to get, and
remain, released from confinement on signature bond. And as the circuit court
noted in its postconviction decision on the speedy trial issue, Applewhite “had
multiple cases pending in multiple counties, which would presumably dilute the
anxiety caused by this one in particular.” As to impairment to Applewhite’s
defense, Applewhite puts forth no argument, so we can only presume his defense
was not impaired. As Applewhite acknowledges in his briefing, “emotional
suffering and impediments to [his] trial preparation—are less overt in this record”
and “the prejudice he suffered is harder to pinpoint.”

¶19 Balancing the four speedy trial considerations—length of delay,
reasons for delay, assertion of speedy trial right, and prejudice—we agree with the
circuit court that Applewhite “has not shown that his fundamental right to a
speedy trial was violated.” Even if we attributed significantly more delay to the

10
No. 2020AP683-CR

State than the approximately eighteen months we do, we would not find a
violation.5 In Urdahl, we expressed that the “twenty and one-half months
attributable to the State is certainly a long period of time, but not extraordinarily
long, and no part is weighted heavily against the State because it was due to the
court’s congested calendar.” Id., ¶37. Likewise here, none of the time that could
possibly be attributed to the State is weighted heavily against it. Furthermore,
Applewhite’s nonchalant attitude toward securing counsel, his request for
adjournment of trial so he could attend his daughter’s birthday, and his failure to
again raise the speedy trial issue with his counsel once he was released on
signature bond do not support his side of the balance. And lastly, he has shown
only minimal prejudice.

¶20 Because it is well-settled that trial counsel is not ineffective where
he/she fails to raise a meritless issue, State v. Wheat, 2002 WI App 153, ¶14, 256
Wis. 2d 270, 647 N.W.2d 441, which a speedy-trial motion to dismiss would have
been in this case, we conclude that counsel did not perform ineffectively by failing
to make such a motion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2019-20).

5
Applewhite states in his brief-in-chief that nineteen of the “31 months between [his]
arrest and plea” “aren’t chargeable to the state,” and adds that only one eight month period and
one four month period—so twelve months—of these thirty-one months are to be counted against
the State. (Emphasis added.) Again, we err on the side of generosity to Applewhite with our
counting of days.

11