State v. Sean R. Wolfe

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.
March 30, 2022
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. 2021AP77-CR Cir. Ct. No. 2015CF429

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SEAN R. WOLFE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Washington County: JAMES G. POUROS, 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. 2021AP77-CR

¶1 PER CURIAM. Sean R. Wolfe appeals a judgment of conviction
for two counts of possession of child pornography as a repeater. He also appeals
an order denying his postconviction motion, in which he alleged that his initial
attorney was constitutionally ineffective for failing to seek suppression of his
custodial statements. On appeal, he renews his ineffective assistance of counsel
argument, asserting that his custodial statements were made involuntarily and
without a valid Miranda1 waiver. We conclude Wolfe validly waived his
Miranda rights and his statements were voluntarily made. Accordingly, his
attorney was not ineffective for failing to seek suppression of the statements. We
affirm.

BACKGROUND

¶2 Wolfe was charged with seven counts of possession of child
pornography as a repeater after his probation agent learned that his mother
retrieved a cell phone (which he was not supposed to have) from Wolfe’s
residence in a Department of Corrections housing facility. At the time, Wolfe had
been placed by his agent at the Washington County Jail due to his threatening self-
harm. Wolfe’s mother delivered the phone to the agent, who discovered images of
suspected child pornography. The agent referred the matter to Detective Eric
Grinwald of the West Bend Police Department, who obtained a search warrant and
conducted a custodial interview with Wolfe. During the interview, Wolfe
admitted to possessing the cell phone and downloading child pornography on it,
but denied he had viewed the pornography for sexual gratification.

1
See Miranda v. Arizona, 384 U.S. 436 (1966).

2
No. 2021AP77-CR

¶3 Wolfe’s counsel raised concerns about Wolfe’s competency, but
Wolfe withdrew his competency challenge following an evaluation, and the circuit
court found him competent to proceed. Pursuant to a plea agreement, Wolfe
pleaded guilty to two counts as charged, and the remaining five counts were
dismissed and read in.

¶4 Following receipt of the presentence investigation report (PSI), the
circuit court expressed concern with Wolfe’s protestations of innocence to the PSI
writer. Wolfe orally expressed a desire to withdraw his pleas, at which time the
court requested written argument.2 The court ultimately denied the motion for
plea withdrawal and set the matter for sentencing, at which time it ordered a
lengthy prison sentence on one count and probation with an imposed and stayed
sentence on the other count.

¶5 Wolfe filed a motion for postconviction relief seeking plea
withdrawal and the suppression of his statements to law enforcement. 3 Wolfe
argued that given his personal characteristics, the State had failed to obtain a
knowing and intelligent waiver of Wolfe’s constitutional rights following
Miranda warnings. Additionally, he argued that the tactics used by Grinwald
rendered his statements involuntary. Wolfe framed each of these issues as a

2
Attorney Brian Borkowicz was initially appointed to represent Wolfe. During briefing
on the withdrawal motion, Borkowicz withdrew from the representation, and successor counsel
was appointed. The ineffective assistance of counsel claims raised in this appeal apparently
pertain only to the adequacy of Borkowicz’s representation, as he was the only one of Wolfe’s
attorneys to testify at the postconviction hearing.
3
Alternatively, Wolfe sought resentencing before a different judge, alleging the circuit
court had ordered an illegal sentence, considered inaccurate information, and demonstrated bias
toward Wolfe. Wolfe does not raise these issues on appeal, and we will not consider them further
except insofar as it is necessary to discuss the procedural history of this case.

3
No. 2021AP77-CR

challenge to the constitutional effectiveness of his initial attorney, who had failed
to request a Miranda-Goodchild hearing.4

¶6 The circuit court conducted a Machner hearing.5 Wolfe presented
testimony from Dr. Nick Yackovich, a psychologist; Grinwald; Randy Berry and
Benjamin Bauer, correctional officers at the Washington County Jail; and Wolfe’s
initial attorney. After considering their testimony and listening to a recording of
the interview, the court denied Wolfe’s postconviction motion, determining that he
validly waived his constitutional rights following Miranda warnings and his
statements to Grinwald were voluntary. Consequently, the court determined
counsel was not deficient for failing to bring a motion to suppress, as such a
motion would have been meritless.

¶7 Wolfe sought resentencing on the basis of an illegal probationary
sentence, which was granted.6 At the same time, he sought to appeal the denial of
his Miranda-Goodchild motion. We concluded such bifurcation was improper
and required Wolfe to wait until he was resentenced to appeal. After resentencing,
Wolfe renewed his Miranda-Goodchild claims, asserting that “new developments
in relevant case law” warranted “further postconviction proceedings on his plea
withdrawal claim.” Wolfe requested that he be allowed to supplement the

4
Named after Miranda and State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133
N.W.2d 753 (1965), such hearings are designed to determine the adequacy of Miranda warnings,
whether the defendant validly waived his or her constitutional rights, and whether the ensuing
statements were voluntarily made. See State v. Jiles, 2003 WI 66, ¶25, 262 Wis. 2d 457, 663
N.W.2d 798.
5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
6
The Honorable Todd K. Martens presided over Wolfe’s original sentencing and
postconviction proceedings. The Honorable James G. Pouros presided over Wolfe’s resentencing
and subsequent proceedings.

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No. 2021AP77-CR

postconviction evidence with his own testimony in support of his motion. 7 The
court received Wolfe’s testimony, but it found him incredible and denied the
renewed motion. Wolfe now appeals.

DISCUSSION

¶8 Wolfe asserts his initial attorney was constitutionally ineffective for
failing to seek suppression of his custodial statements on the dual bases that the
waiver of his constitutional rights following Miranda warnings was not knowing,
intelligent and voluntary, and that his statements themselves were coerced.
Because we conclude any challenge on these bases would not have been
successful, we hold that Wolfe received constitutionally adequate assistance. See
State v. Sanders, 2018 WI 51, ¶29, 381 Wis. 2d 522, 912 N.W.2d 16 (holding
counsel does not perform deficiently by failing to bring a meritless motion).

¶9 We apply the same two-tier standard of review to issues regarding
the validity of a Miranda waiver and the voluntariness of a defendant’s
statements. See State v. Markwardt, 2007 WI App 242, ¶30, 306 Wis. 2d 420,
742 N.W.2d 546; State v. Rockette, 2005 WI App 205, ¶22, 287 Wis. 2d 257, 704
N.W.2d 382. We will not overturn the circuit court’s findings of historical fact

7
As the circuit court noted, Wolfe’s postconviction counsel was clear that she was not
seeking to revisit the circuit court’s earlier factual findings.

5
No. 2021AP77-CR

unless they are clearly erroneous.8 Id. However, the application of constitutional
principles to those facts presents a question of law that we review de novo. Id.

¶10 We first consider whether Wolfe validly waived his constitutional
rights following Miranda warnings. At a suppression hearing, the State would
have been required to show that Wolfe received and understood a set of Miranda
warnings sufficient to advise him of his constitutional rights and that he knowingly
and intelligent waived those rights following administration of the warnings. State
v. Jiles, 2003 WI 66, ¶26, 262 Wis. 2d 457, 663 N.W.2d 798. Wolfe does not
challenge the adequacy of the Miranda warnings given, only whether he validly
waived his rights.

¶11 A waiver is “knowing, voluntary and intelligent where it is ‘the
product of a free and deliberate choice rather than intimidation, coercion, or
deception,’ and has ‘been made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it.’” State
v. Ward, 2009 WI 60, ¶30, 318 Wis. 2d 301, 767 N.W.2d 236 (citation omitted).
Only if the totality of the circumstances demonstrates that a defendant with the
requisite level of comprehension made an uncoerced choice will we conclude that
a waiver was valid. State v. Rejholec, 2021 WI App 45, ¶29, 398 Wis. 2d 729,
963 N.W.2d 121.

8
Relying on State v. Jimmie R.R., 2000 WI App 5, ¶39, 232 Wis. 2d 138, 606 N.W.2d
196 (Ct. App. 1999), Wolfe asks that we disregard this well-settled proposition and conduct a
wholly de novo review. In Jimmie R.R., however, the “only evidence” on the legal question
presented was a videotape recording. Id. Here, by contrast, the circuit court took extensive
testimony during the Machner hearing—at Wolfe’s request—about the circumstances of the
questioning, in addition to listening to the audio recording of Wolfe’s interview. Accordingly, we
review the court’s factual findings under the clearly erroneous standard.

6
No. 2021AP77-CR

¶12 The State establishes a prima facie case for a valid waiver when it
demonstrates that the defendant was read the Miranda warnings and indicated he
or she understood them and was willing to make a statement. See Ward, 318
Wis. 2d 301, ¶30; State v. Lee, 175 Wis. 2d 348, 360, 499 N.W.2d 250 (Ct. App.
1993). Here, the circuit court found that early on in the interview, Grinwald read
Wolfe each of the rights required by the Miranda warnings, and each time Wolfe
responded that he understood that right. He then agreed to provide a statement to
Grinwald and signed the waiver form.

¶13 Given the State’s prima facie case, Wolfe must demonstrate
“countervailing evidence” that his waiver was invalid. See Lee, 175 Wis. 2d at
361. Wolfe points to several factors—including lengthy pre-interrogation
detention, an ongoing mental health crisis punctuated by erratic behavior and
suicidal ideations, and certain cognitive limitations—that rendered his waiver
invalid. We conclude none of these factors are sufficient to produce an invalid
waiver.

¶14 Wolfe was twenty-four-years old and a high school graduate.
Although it is undisputed that Wolfe has some cognitive limitations, Yackovich
opined that his IQ and functional intelligence level “would be considered average
or low average.” Yackovich was also of the opinion that Wolfe would exaggerate
some of his mental health symptoms. Yackovich’s testimony does not establish

7
No. 2021AP77-CR

that Wolfe was incapable of understanding or waiving his rights, despite his
cognitive limitations and erratic—including arguably suicidal—behavior.9

¶15 As further explained below, Wolfe’s lengthy pre-interrogation
detention—approximately five weeks on a probation hold—also is a relatively
insignificant factor given the totality of the circumstances. Wolfe had been read
the Miranda warnings before. The audio recording of the exchange does not in
any way suggest Wolfe was confused about his rights. Grinwald asked Wolfe to
tell him if Wolfe was confused about anything, and Wolfe never requested
clarification. Nor does the appellate record support a finding that threats, pressure
or coercion were used to obtain Grinwald’s waiver.

¶16 Wolfe counters that his waiver was involuntary because Grinwald
“implied that he could not help Mr. Wolfe with his safety concerns until and
unless he first waived” his rights. To be sure, Grinwald’s administration of the
Miranda warnings and his request for a waiver of rights occurred after a few
minutes of preliminary discussion about Wolfe’s jail situation and his threats of
suicide. In our view, however, the content and context of the discussion does not
lend itself to Wolfe’s interpretation.

9
Some of the pre-interview behavior testified to at the Machner hearing included Wolfe
scratching his neck with a comb, hitting his head against a wall and the floor, and submerging his
head in a toilet. After the interview, Wolfe placed a table leg on his neck, but the correctional
officer was unsure if he was supporting the table with his hands. We note at certain points during
the interrogation, Wolfe appeared to somewhat downplay the seriousness of his suicidal threats.
At the conclusion of the interview, when Grinwald asked if Wolfe felt like he was going to kill
himself, Wolfe responded that he did not but wanted to go to a mental health institution.
Nonetheless, Grinwald appears to have taken Wolfe’s threats seriously by reporting the threats to
jail staff after the interview.

8
No. 2021AP77-CR

¶17 Specifically, Grinwald immediately introduced himself to Wolfe as a
police detective. Grinwald asked how Wolfe was being treated, and Wolfe replied
he was being treated “like shit,” adding, “I was about to kill myself in here.”10
Wolfe said he “[couldn’t] stand being in this jail,” then complained about his
probation agent and claimed he had been recently bullied and in a fight. The
following exchange then occurred:

Grinwald: I want to talk to you about this stuff, I really do,
and it seems like you would be willing to talk about some
of it too, but before I do that, because we’re here, I’m not,
like, a probation agent or anything like that, I have to read
you a form before I can talk to you when you’re in jail.
The form is your rights, have you ever had your rights read
to you?

Wolfe: The rights?

Grinwald: Yeah, your rights. Like … and I can read this to
you. Well, first of all, can we talk? I’d like to talk to you a
little bit about this, and how it’s going in here, and how you
ended up here, and stuff like that, is that cool?

Wolfe: Well, I still want to start with that part where I got
in here.

Grinwald: Absolutely, yeah, that’s fine with me. But I
want to hear about it, and I like to ask questions while I’m
talking to people, and I can’t ask you any questions unless I
read you this first. You know what I’m saying?

Wolfe: Okay.

Grinwald: Okay. So I’m going to read this to you, I’m
going to see if you understand everything. If you don’t
understand something, tell me and I will try to explain it the
best—

Wolfe: So, I’m shaking, I’m cold.

10
The audio recording does not appear to have been transcribed. The transcription in
this opinion is based on this court’s review of the audio file.

9
No. 2021AP77-CR

Grinwald: It is chilly, yeah. I’m cold too and I got a jacket
on. Alright, before I read you—before I ask you any
questions, you must know that you have the following
rights under the United States and Wisconsin constitutions.

Grinwald then read Wolfe each of his Miranda rights. Wolfe acknowledged each
time that he understood that right, and he said he was willing to make a statement.
We concur with the circuit court’s assessment that there was no threat to withhold
aid unless Wolfe waived his rights, nor was there a promise that Grinwald would
provide aid in exchange for the waiver.

¶18 Wolfe also argues his statements were involuntary. At a suppression
hearing, the State would have had to demonstrate the voluntariness of Wolfe’s
statements by a preponderance of the evidence. See State v. Dobbs, 2020 WI 64,
¶72, 392 Wis. 2d 505, 945 N.W.2d 609. Voluntariness is evaluated in light of all
the circumstances surrounding the interrogation by balancing the defendant’s
personal characteristics against the actions of law enforcement. Id.

¶19 Largely for the reasons set forth above, Wolfe contends he was
“particularly susceptible to police pressure.” While Wolfe acknowledges his prior
interactions with police are a factor tending to show voluntariness, he contends his
cognitive limitations, suicidal ideations, and emotional state weigh “heavily
against voluntariness.” Wolfe further argues that the police pressures applied to
him—including “[e]xcessive incarceration” and Grinwald’s “manipulation, deceit,
and ridicule” —also militate against voluntariness.

¶20 We agree with the State that, considering the totality of the
circumstances, Wolfe’s statements were the product of his free and unconstrained
will. His cognitive limitations and mental health issues were not so severe that he
was incapable of resisting the police pressures applied in this case, which we

10
No. 2021AP77-CR

discuss more fully below. Wolfe was undisputedly subject to a lengthy pre-
interrogation detention, but the detention was a result of his prior conduct that had
been subject to adversarial testing in the judicial system and resulted in a period of
supervision. Contrary to Wolfe’s claim, it was not the equivalent of pre-
arraignment delay.

¶21 The conditions under which the questioning occurred were not
extreme in any fashion. Wolfe was questioned in a room in the jail behind a
closed door. He was not questioned for a lengthy period of time—approximately
one hour and twelve minutes. He was not in handcuffs, and was questioned by
only a single investigator, who did not have a gun. Grinwald did not raise his
voice to Wolfe.11 Our review of the audio recording confirms the circuit court’s
finding that the tone of the interview was generally “conversational.” Wolfe
himself terminated the interview by requesting counsel.

¶22 Coercive police tactics are a necessary predicate to a finding of
involuntariness. State v. Deets, 187 Wis. 2d 630, 635, 523 N.W.2d 180 (Ct. App.
1994). Many of the purportedly coercive tactics cited by Wolfe occurred late in
the interview, after Wolfe admitted he had a cell phone and had downloaded child
pornography on it. Wolfe had offered various explanations for his doing so,
including that he was angry, that he believed he could reopen a prior child
pornography case by catching new charges, because he figured that if people

11
Wolfe disputes that Grinwald did not raise his voice. Our review of the audio
recording confirms the circuit court’s factual finding. Even if Grinwald arguably took a more
stern tone with Wolfe at certain points in the interview, there was no yelling or exclamations
involved.

11
No. 2021AP77-CR

thought he was looking at child pornography he might as well prove them right,
and that he was playing his probation officer’s game.

¶23 While trying to elicit Wolfe’s confession to viewing the child
pornography for sexual gratification, Grinwald took a reassuring tone with Wolfe,
asking him to be honest, telling him it was okay if child pornography turned him
on, it was “no big deal” and there was “nothing wrong” with downloading
pornography, although he said it was a “little bit different” given that the images
were of children. Wolfe repeatedly insisted that he did not receive sexual
gratification from looking at child pornography and did not like to view it. At
times, Grinwald took a more stern tone, accusing Wolfe of lying and dismissing
his various and inconsistent explanations for looking at the child pornography.

¶24 We disagree with Wolfe’s assertion that these tactics overcame his
free will. The most compelling evidence of this is that Grinwald never was
successful at getting Wolfe to admit that he was sexually aroused by the child
pornography. Cf. Minnesota v. Murphy, 465 U.S. 420, 438 (1984) (noting that
defendant’s adamant denial of committing one crime demonstrated his will had
not been overcome during his confession to other crimes). To the extent Wolfe
suggests Grinwald employed a deceitful “false friend” technique, the Supreme
Court has considered this a coercive factor when there was a preexisting “bond of
friendship” between the officer and the defendant, which led the defendant to
believe he could place trust in the officer. See Spano v. New York, 360 U.S. 315,
323-24 (1959). No such situation is present here.

¶25 Moreover, general exhortations to honesty or to do the right thing
are not categorically impermissible. Simmons v. Bowersox, 235 F.3d 1124, 1133
(8th Cir. 2001); Stawicki v. Israel, 778 F.2d 380, 383 (7th Cir. 1985). A police

12
No. 2021AP77-CR

officer may express dissatisfaction with a defendant’s responses of which he or
she is skeptical and may also suggest that cooperation would be to the defendant’s
benefit, as long as leniency is not promised. Deets, 187 Wis. 2d at 636. The
circuit court concluded that some of Grinwald’s statements were directed at
reassuring Wolfe that his downloading of child pornography was a less serious
matter than if he had taken photographs of nude children himself.12

¶26 Wolfe claims he was confused regarding who Grinwald was, noting
that during the interview he asked Grinwald if he was an attorney. Grinwald
identified himself at the beginning of the interview, and it was only when
Grinwald began asking detailed questions about how many images Wolfe
downloaded and when he downloaded them that Wolfe questioned Grinwald about
his occupation. Grinwald responded that he thought Wolfe knew he was a police
detective, because Wolfe had previously asked him about additional charges.
Wolfe did not further comment on this purported confusion during the interview,
and he was not even asked at the Machner hearing whether he was truly confused.

¶27 In short, the totality of the circumstances demonstrates that any
arguably coercive tactics used during the interrogation did not overcome Wolfe’s
free will so as to render his statements involuntary. Moreover, as explained above,
the appellate record demonstrates Wolfe’s waiver of his constitutional rights
following administration of Miranda warnings was knowing, intelligent and

12
Although Wolfe contends Grinwald’s concerns about Wolfe generating child
pornography himself were farcical, we note that during the interview Grinwald questioned Wolfe
about some images that were apparently created by him using his cell phone’s camera. Grinwald
told Wolfe he did not believe Wolfe took any of the pictures of suspected child pornography, but
he wanted Wolfe to confirm that belief. On this record, we cannot gainsay, as Wolfe does, the
possibility that he had an opportunity to create one or more of the images he apparently had in his
possession.

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No. 2021AP77-CR

voluntary. As a result, his initial attorney was not constitutionally ineffective for
failing to seek suppression of his incriminating statements.

By the Court.—Judgment and order affirmed.

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

14