State v. Anthony L. Sims, III

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.
October 12, 2023
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. 2022AP865-CR Cir. Ct. No. 2020CF170

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ANTHONY L. SIMS, III,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Rock
County: BARBARA W. McCRORY, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, 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. 2022AP865-CR

¶1 PER CURIAM. A jury found Anthony Sims guilty of first degree
recklessly endangering safety while armed with a dangerous weapon as a party to
a crime, concerning a fight in Beloit in 2019 that escalated when shots were fired
and one person was killed and at least two persons were injured by gunfire. After
the circuit court imposed sentence and entered the judgment of conviction, Sims
filed a motion for postconviction relief alleging that trial counsel provided
constitutionally ineffective assistance for failing to object to certain testimony.
Specifically, Sims argued that counsel was ineffective for failing to object to
testimony by a police officer that, in the course of an unrelated investigation
several years before the fight at issue, she had obtained information that Sims is
identified by a nickname, “Tone,” that was used by one of the persons connected
with the fight. The circuit court denied the motion without holding an evidentiary
hearing, concluding that Sims did not show that any error in failing to object to the
testimony was prejudicial.

¶2 On appeal, Sims argues that he is entitled to a new trial because
(1) the officer’s testimony violated his right to confront witnesses against him,
(2) he did not forfeit his challenge to the testimony on confrontation grounds, and
(3) counsel’s failure to object to the testimony was plain error. Alternatively,
Sims argues that he is entitled either to a new trial because counsel was
constitutionally ineffective for failing to object to the officer’s testimony, or to an
evidentiary hearing on his ineffective assistance claim. Separately, Sims argues
that he is entitled to the dismissal of this case and the vacation of his conviction
because his constitutional right to a speedy trial was violated.

¶3 We conclude that Sims fails to show that the officer’s testimony
violated his right to confrontation. Reaching the other issues that Sims raises on
appeal, we also conclude that Sims forfeited his challenge to the officer’s

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No. 2022AP865-CR

testimony on confrontation grounds and fails to show that any error in failing to
object to that testimony was obvious so as to constitute plain error. We further
conclude that the record conclusively shows that any such error did not prejudice
Sims and, therefore, the circuit court properly exercised its discretion in denying
his ineffective assistance claim without an evidentiary hearing. Finally, we reject
Sims’s speedy trial argument because he failed to raise it in his postconviction
motion and raises it for the first time on appeal. Accordingly, we affirm.

BACKGROUND

¶4 Police responded to reports of shots being fired in Beloit at about
9:30 at night on March 11, 2019. At the scene, police found the body of one
person who had died from a gunshot wound and two persons who were injured by
gunshot wounds. The State charged Sims with one count of first-degree recklessly
endangering safety while armed as a party to a crime and one count of felon in
possession of a firearm, based on Sims’s alleged involvement in this incident.

¶5 Sims filed a motion for a speedy trial on February 28, 2020, and his
trial began on April 12, 2021.

¶6 Thirty-four witnesses testified at the four-day jury trial. The
following allegations, pertinent to the issues on appeal concerning Sims’s trial
counsel’s failure to object to an officer’s testimony connecting Sims with the
nickname Tone, are taken from the trial testimony.

¶7 On March 11, 2019, school personnel broke up a fight at a high
school in Beloit between S.W. and Douglas Hill, Jr. That evening, three to six
men came to S.W.’s house looking for S.W. in order to pursue continuation of the
fight between S.W. and Hill. One of these men said through the door, without

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No. 2022AP865-CR

revealing himself to people inside, “This is Doug’s cousin Tone.” “Tone” also
said that the men were looking for S.W. because Hill wanted to have a “one-on-
one” with S.W.1 S.W. was not at home when the men came looking for him, and
the men returned to a gray minivan. Shortly thereafter, at about 9:30, S.W.’s
brothers and friends and the men in the gray minivan supporting Hill gathered near
S.W.’s house and in front of Hill’s grandparents’ house, and S.W. and Hill met
and began to fight “one-on-one” in the middle of the street.

¶8 During the fight between S.W. and Hill, two men from the group
supporting Hill fired guns at S.W.’s brothers and friends. The first shooter was
not identified, and the second man, who was wearing a red jumpsuit, was later
identified as Hill’s uncle Gregory Carter. When the shooting began, the people
present, including Hill and some of the adults supporting him, and S.W. and
S.W.’s brothers and friends, ran off in different directions. As people were
running away, one of S.W.’s friends fired a gun back at the group supporting Hill.
One of S.W.’s brothers was shot and killed, and another of his brothers and one of
his friends were shot and injured.

¶9 At 10:07 on the same night, Sims walked into a hospital in
Rockford, Illinois, with a gunshot wound in his shoulder. Sims told the
responding officer that he had been walking from his house in Rockford to a gas
station to purchase cigarettes when he was shot by a passenger in a moving car.
Sims said that he flagged down a silver van and the van’s driver drove him to the
hospital. The hospital’s surveillance video showed Sims walking to the hospital

1
We infer from the trial testimony that the phrase “one-on-one” refers to a fight between
two people without the use of weapons.

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No. 2022AP865-CR

and contained no footage showing a vehicle dropping him off at the hospital.
Sims’s injury was not consistent with his description of how he was shot. Law
enforcement did not receive any report that night of shots being fired, and did not,
in talking with residents in the neighborhood, receive any report of any witnesses
hearing shots fired, in the area where Sims said he was shot. Rockford is a 20-
minute drive away from Beloit, and the time that Sims reported to the hospital in
Rockford was consistent with his having been at the fight in Beloit.

¶10 Sims denied being at the fight and shootings in Beloit and told police
that he was not with Gregory Carter that day. Two of Sims’s cousins told police
that Sims was there. One of the cousins generally calls Sims “Tony.”

¶11 Officers retrieved fired cartridge casings at the scene of the fight and
shootings in Beloit from three separate guns. After the men supporting Hill began
shooting at S.W.’s brothers and friends, one of S.W.’s friends shot back while
S.W. and his brothers and friends were running away. The location of that friend
of S.W. when he fired back was consistent with him shooting Sims.

¶12 An officer subsequently located a gray minivan connected to Sims’s
family, which had been towed to an unknown location sometime after the fight
and shootings.

¶13 Officer Wehmas of the Janesville Police Department testified that
she was contacted by the Beloit Police Department in connection with the
investigation of this case and asked about identification of Anthony Sims by the
nickname “Tone.” On direct examination by the prosecutor, Wehmas testified
that, in response to that contact, she located reports that she had created in the
course of a 2014-2015 criminal investigation that identified Anthony Sims as
using or being identified by the name “Tone.” On cross examination by defense

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No. 2022AP865-CR

counsel, Wehmas testified that she “personally observed the nickname Tone in
[an] individual’s cell phone. The person I interviewed knew Anthony Sims from
past drug [deals].” On redirect examination, Wehmas testified that she personally
observed a telephone number that Wehmas associated with Sims reflected on this
individual’s phone and it was stored on the phone under the name “Tone.”

¶14 The jury found Sims guilty of one count of first-degree recklessly
endangering safety while armed with a dangerous weapon as party to a crime and
acquitted Sims of the felon in possession count.

¶15 Sims filed a motion for postconviction relief, alleging that his trial
counsel was constitutionally ineffective for failing to object on confrontation
grounds to the officer’s testimony as to the identification of Sims as Tone. The
circuit court denied the motion without holding an evidentiary hearing. This
appeal follows.

DISCUSSION

¶16 Sims appeals the circuit court’s denial of his motion for
postconviction relief without a hearing. The standard of review of a circuit court’s
decision denying a motion for postconviction relief without a hearing is well
established. A postconviction motion must allege sufficient material facts that, if
true, would entitle the defendant to relief. State v. Ruffin, 2022 WI 34, ¶27, 401
Wis. 2d 619, 974 N.W.2d 432. A motion does not entitle a defendant to relief if it
contains “only conclusory allegations, or if the record conclusively demonstrates
that the defendant is not entitled to relief.” Id., ¶28. Whether a motion suffices to
entitle a defendant to relief is a question of law that this court reviews de novo.
State v. Sulla, 2016 WI 46, ¶23, 369 Wis. 2d 225, 880 N.W.2d 659; State v. Allen,
2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433.

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No. 2022AP865-CR

¶17 If the motion suffices to entitle the defendant to relief, then the
circuit court is required to grant a hearing on the motion. State v. Jackson, 2023
WI 3, ¶8, 405 Wis. 2d 458, 983 N.W.2d 608. If the motion does not suffice to
entitle the defendant to relief, then it is within the court’s discretion as to whether
to hold a hearing. Id.; Allen, 274 Wis. 2d 568, ¶9. Here, the circuit court
determined that Sims’s postconviction motion did not entitle him to relief and
denied his motion without a hearing.

¶18 In arguing that the circuit erred, Sims raises two sets of issues. The
first relates to his right to confrontation and the second relates to his constitutional
right to a speedy trial. We address each set of issues in turn.

I. Right to Confrontation

¶19 The Sixth Amendment of the United States Constitution provides
criminal defendants the right to confront witnesses against them. Crawford v.
Washington, 541 U.S. 36, 42 (2004). “[A] defendant’s right to confrontation is
violated if the trial court receives into evidence out-of-court statements by
someone who does not testify at the trial if those statements are ‘testimonial’ and
the defendant has not had ‘a prior opportunity’ to cross-examine the out-of-court
declarant.” State v. Mattox, 2017 WI 9, ¶24, 373 Wis. 2d 122, 890 N.W.2d 256.
“If the statements are not testimonial, the Confrontation Clause is not implicated.”
Id. A statement is testimonial if its “primary purpose” was to “gather evidence for
[the defendant’s] prosecution” or “substitute for testimony in a criminal
prosecution.” Id., ¶¶32, 33.

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No. 2022AP865-CR

A. No Confrontation Right Violation

¶20 Sims argues that his right to confrontation was violated and trial
counsel was constitutionally ineffective for failing to protect that right, when
counsel failed to object to the officer’s testimony that Sims goes by the nickname
Tone.

¶21 Before we address Sims’s arguments, we must first determine
whether the testimony at issue implicates his Sixth Amendment right to confront
the witnesses against him. Referenced briefly above, the following is a more
detailed summary.

¶22 On direct examination, Officer Wehmas testified that she had been
asked by the Beloit Police Department in the course of the investigation of this
case about reports she had prepared in a prior investigation in which Sims was
identified by the nickname Tone. The questioning and testimony continued as
follows.

Prosecutor: And was that related to a 2015 investigation
of yours?

Wehmas: Yes, it was a case which originated in 2014
into 2015.

Prosecutor: So when you were contacted by Beloit PD,
you went back and located reports that
already existed?

Wehmas: Yes.

Prosecutor: And they identified Anthony Sims as Tone?

Wehmas: Yes.

Prosecutor: And you were not involved personally at all
in the case that we’re trying here this week,
right?

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No. 2022AP865-CR

Wehmas: Correct. I was not.

¶23 The prosecutor asked no further questions on direct, and counsel
proceeded with cross examination as follows.

Counsel: Did you enter Tone into the database or is it
something that you had found in the
database?

Wehmas: I personally observed the nickname Tone in
the same individual’s cell phone.

Counsel: And how did you learn of this … name for
Mr. Sims?

Wehmas: The person I interviewed knew Anthony
Sims from past drug addictions or
purchasing of heroin.

Counsel: So this is what that particular person that
you interviewed referred to Mr. Sims as; is
that correct?

Wehmas: The person I interviewed … identified
Anthony Sims as his heroin dealer.

¶24 Counsel asked no further questions, and the prosecutor proceeded
with redirect examination as follows.

Prosecutor: Sgt. Wehmas, specifically the person you
interviewed had Mr. Sims in his cell phone
as Tone, correct?

Wehmas: Correct.

Prosecutor: [I]n 2015 did you personally observe …
Anthony Sims’s [telephone] number stored
in this individual’s phone as Tone, T-O-N-
E?

Wehmas: Yes, I did.

¶25 Sims does not identify specifically which portions of Wehmas’s
testimony implicates his confrontation right. In his appellant’s brief, Sims asserts,

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No. 2022AP865-CR

“Officer Wehmas testified she knew Mr. Sims to identify as ‘Tone’” based on “the
statement of an individual during a custodial interrogation.” Sims also asserts,
“The person who identified Mr. Sims was not Officer Wehmas, it was a suspect
she was interrogating. This suspect was not a witness at trial, and Mr. Sims had
no opportunity to cross examine him.” In the same vein, Sims also asserts that the
person whom Wehmas interviewed “claimed to know [Sims] as ‘Tone.’”

¶26 However, the testimony quoted above shows that the prosecutor did
not elicit any testimony by Wehmas that the person she interviewed identified
Sims as Tone. Rather, both on direct and redirect examination, Wehmas testified
only that reports she had prepared in 2014 or 2015 identified Sims as Tone, and,
more specifically, that she personally observed a telephone number that Wehmas
associated with Sims on the phone of the person she interviewed, and that
telephone number was stored as “Tone.” Wehmas did not testify on direct or
redirect examination that the person made any statement to Wehmas about Sims
being Tone. It was her prior knowledge of the telephone number that she
associated with Sims that provided the link.

¶27 On cross examination, Wehmas testified that she saw the nickname
Tone in the phone of the person she interviewed. She did not testify that the
person “referred to” Sims as Tone; rather she testified that the person knew Sims
from prior drug-related interactions and “identified” Sims as his heroin dealer.2
Again, Wehmas did not testify on cross examination that the person made any

2
While this is potentially incriminating testimony in itself, Sims does not argue on
appeal that Wehmas’s testimony on cross examination that the person she interviewed identified
Sims as his heroin dealer was inadmissible on any basis other than that it purportedly created a
connection between Sims and the nickname Tone.

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No. 2022AP865-CR

statement about Sims being Tone. Rather, to repeat, Wehmas testified that she
saw a telephone number that she associated with Sims stored as “Tone” on the
person’s phone.

¶28 In sum, Sims fails to identify any testimony that the person Wehmas
interviewed in 2014 or 2015 made a statement that the person knew Sims as Tone.
Accordingly, we conclude that the circuit court did not “receive[] into evidence
out-of-court statements by someone who does not testify at the trial,” Mattox, 373
Wis. 2d 122, ¶24, and that Sims’s challenges to Wehmas’s testimony on
confrontation right grounds fail on that basis.

¶29 Although we could end our analysis here, for the sake of
completeness and to the extent that some aspect of Wehmas’s testimony could
constitute unobjected to error, we address the issues raised on appeal regarding
any error as follows. We conclude that Sims forfeited his challenge to the
testimony and that any error by trial counsel in failing to object to the testimony
was not plain error and did not prejudice Sims.

B. Forfeiture

¶30 “It is a fundamental principle of appellate review that issues must be
preserved at the circuit court. Issues that are not preserved at the circuit court,
even alleged constitutional errors, generally will not be considered on appeal.”
State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727; State v.
Davis, 199 Wis. 2d 513, 517, 545 N.W.2d 244 (Ct. App. 1996) (“‘[U]nobjected-to
errors are generally considered waived; and the rule applies to both evidentiary
and constitutional errors.’” (quoted source omitted)). This rule of forfeiture is “not
merely a technicality or a rule of convenience; it is an essential principle of the
orderly administration of justice.” Huebner, 235 Wis. 2d 486, ¶11. The rule

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No. 2022AP865-CR

“promotes both efficiency and fairness, and ‘go[es] to the heart of the common
law tradition and the adversary system.’” Id. (quoted source omitted; alteration in
Huebner).

¶31 One of the primary objectives of the forfeiture rule is to promote
raising an issue through an objection at the circuit court level, which “allows the
[circuit] court to correct or avoid the alleged error in the first place, eliminating the
need for appeal.” Id., ¶12. This process “gives both parties and the [circuit court]
judge notice of the issue and a fair opportunity to address the objection.” Id. “The
party who raises an issue on appeal bears the burden of showing that the issue was
raised before the circuit court.” Id., ¶10.

¶32 In failing to preserve at trial the issue of whether his right to
confrontation was violated, Sims has not met this burden. As a result, he has
forfeited a review of this issue on appeal.

¶33 Sims argues that the forfeiture rule does not apply to his right to
confrontation, because that right is a constitutional right that must be knowingly,
intelligently, and voluntarily waived.3 However, Sims does not cite any legal
authority supporting the proposition that a defendant’s confrontation right must be
knowingly, intelligently, and voluntarily waived. Rather, he asserts that the
Wisconsin case law that holds that constitutional rights are deemed forfeited
unless timely raised in the circuit court contradicts United States Supreme Court
precedent. However he does not support this assertion with a developed argument

3
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.” State v. Ndina, 2009 WI 21, ¶29,
315 Wis. 2d 653, 761 N.W.2d 612 (quoted source omitted).

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No. 2022AP865-CR

identifying or explaining which aspect of Wisconsin case law contradicts which
aspect of United States Supreme Court precedent. Accordingly, we do not
consider this argument further. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (stating that this court may decline to address
arguments unsupported by legal authority or insufficiently developed).

C. No Plain Error

¶34 Sims argues that, even if he did forfeit his challenge to the
testimony, he may raise that challenge on appeal because counsel’s failure to
object constituted plain error.

¶35 In State v. Jorgensen, 2008 WI 60, 310 Wis. 2d 138, 754 N.W.2d
77, our supreme court explained:

The plain error doctrine allows appellate courts to
review errors that were otherwise waived by a party’s
failure to object. Plain error is “‘error so fundamental that
a new trial or other relief must be granted even though the
action was not objected to at the time.’” The error,
however, must be “obvious and substantial.” Courts should
use the plain error doctrine sparingly.

Id., ¶21 (citations omitted). “If the defendant shows that the unobjected to error is
fundamental, obvious, and substantial, the burden then shifts to the State to show
the error was harmless.” Id., ¶23.

¶36 As explained above, it was not obvious that any aspect of Wehmas’s
actual testimony violated Sims’s confrontation right. That any error arising from
admission of that testimony was not obvious at trial is reinforced by Sims’s failure
on appeal to identify with specificity the testimony that he asserts violated his
confrontation right. Accordingly, we conclude that Sims fails to show that he is
entitled to a new trial based on plain error.

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No. 2022AP865-CR

¶37 Sims argues that, “even though the evidence presented could have
been sufficient [to] convict … Sims,” the asserted error requires a new trial
because it “goes to one of the core, fundamental constitutional protections.” This
argument does not address whether the asserted error was so obvious that it
implicated the constitutional protection at issue. Accordingly, it does not disturb
our conclusion that the plain error doctrine does not apply here.

D. No Ineffective Assistance of Counsel

¶38 Sims argues that, if he forfeited his confrontation right challenge or
failed to show plain error, he is nevertheless entitled to either a new trial or an
evidentiary Machner hearing based on his claim that his trial counsel was
constitutionally ineffective for not objecting to Wehmas’s testimony connecting
Sims with the nickname Tone. See State v. Machner, 92 Wis. 2d 797, 804, 285
N.W.2d 905 (Ct. App. 1979) (when a defendant claims that the defendant received
the ineffective assistance of trial counsel, a postconviction hearing “is a
prerequisite … on appeal to preserve the testimony of trial counsel”). We
conclude that Sims’s claim fails because he does not show that any error
prejudiced his defense.

¶39 The United States Constitution guarantees to criminal defendants the
right to effective assistance of counsel. State v. Balliette, 2011 WI 79, ¶21, 336
Wis. 2d 358, 805 N.W.2d 334; Strickland v. Washington, 466 U.S. 668, 686
(1984). To demonstrate that counsel’s assistance was ineffective, the defendant
must establish both “that counsel’s performance was deficient and that the
deficient performance was prejudicial.” State v. Breitzman, 2017 WI 100, ¶37,
378 Wis. 2d 431, 904 N.W.2d 93 (citing Strickland, 466 U.S. at 687). “[T]here is
no reason for a court deciding an ineffective assistance claim … to address both

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No. 2022AP865-CR

components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697; see also Breitzman, 378 Wis. 2d 431, ¶37 (“If the
defendant fails to satisfy either prong [under Strickland], we need not consider the
other.”). The defendant bears the burden on both of these prongs. State v.
Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111.

¶40 Counsel’s performance is “constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305. A defendant’s burden is to show that counsel
“made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.

¶41 Counsel’s deficient performance prejudiced the defense if “counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.” Id. To prove prejudice, a defendant must establish “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. To prove
prejudice in an ineffective assistance case, “a defendant must establish that but for
[trial counsel’s] error, there is a reasonable probability [that] the jury would have
had a reasonable doubt as to [the defendant’s] guilt.” State v. Sholar, 2018 WI 53,
¶45, 381 Wis. 2d 560, 912 N.W.2d 89. In other words, to establish prejudice, a
defendant need not prove that the outcome “more likely than not” would have
been different absent trial counsel’s error. Id., ¶44.

¶42 “Whether a defendant received ineffective assistance of counsel is a
mixed question of law and fact.” State v. Maday, 2017 WI 28, ¶25, 374 Wis. 2d
164, 892 N.W.2d 611. The circuit court’s findings of fact will not be disturbed

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No. 2022AP865-CR

unless those findings are clearly erroneous. Id. “‘The circumstances of the case
and … counsel’s conduct and strategy’ are considered findings of fact.” Id.
(quoted source omitted). However, whether those facts constitute deficient
performance and whether such deficient performance was prejudicial are questions
of law that we review independently. State v. Tulley, 2001 WI App 236, ¶5, 248
Wis. 2d 505, 635 N.W.2d 807.

¶43 As a preliminary matter, we reject Sims’s argument that he is
entitled to a new trial without an evidentiary hearing based solely on the
allegations in his motion for postconviction relief as contrary to binding
Wisconsin case law. He acknowledges that “an evidentiary hearing is a
prerequisite to appellate review of ineffective assistance of counsel [claims],”
pursuant to this court’s decision in Machner, 92 Wis. 2d at 804. However, he
argues that we need not follow this requirement here because the self-evident
prejudice resulting from the error renders “irrelevant” any strategic reason counsel
may have had for not objecting. Sims is essentially arguing that we overrule
Machner, which we cannot do. See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560
N.W.2d 246 (1997) (this court is bound by its own precedent).

¶44 To the extent that some aspect of Wehmas’s testimony could have
implicated Sims’s confrontation right, although we conclude above that it did not,
we now explain why we conclude that Sims fails to show that any error in failing
to object to that testimony prejudiced him. In his appellant’s brief, Sims asserts
only that prejudice inherently flows from the denial of his right to cross
examination. In his reply brief, Sims asserts that prejudice flows from the
inference that the State called Wehmas as a witness because her testimony was
necessary to support the State’s case. These conclusory assertions disregard the
evidence at trial showing that Sims was an instigator of and present at the fight

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No. 2022AP865-CR

and, which, as noted above, he acknowledges “could have been sufficient [to]
convict” him. That evidence includes the following.

¶45 The person who knocked on S.W.’s door and said that his group was
looking for S.W. to continue the fight with Hill was with a group of three to six
grownups and a gray minivan that was parked outside and later near the fight.
That person was not Hill but was an adult who said he was Tone, Hill’s cousin.
Sims, an adult, is Hill’s cousin. Another of Sims’s cousins knew Sims as Tony,
and an officer other than Wehmas learned that Sims went by the nickname Tone.
Sims was present at the fight and present when shooting began. There was
shooting at the fight by two men in the group supporting Hill and by one friend of
S.W.’s. Sims’s account of being shot in Rockford was not supported by any
evidence of a shooting in the area he described, his wound was not consistent with
how he described the incident, his account of being driven to the hospital was not
supported by the hospital’s surveillance video, and his showing up at the Rockford
hospital was consistent with his having been at the fight in Beloit shortly before.

¶46 In sum, Sims fails to show that a different result was probable had
Wehmas’s testimony—that she saw on a phone a telephone number that she
associated with Sims being identified as Tone—not been presented to the jury.
Accordingly, he fails to show the prejudice necessary to support his ineffective
assistance of counsel claim.

II. Constitutional Right to Speedy Trial

¶47 Sims filed a statutory motion for a speedy trial on February 28,
2020, pursuant to WIS. STAT. § 971.10 (2021-22) and the United States and

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No. 2022AP865-CR

Wisconsin Constitutions.4 The circuit court delayed the trial for cause on June 30,
2020 and November 17, 2020. Sims sought modification of his bond on
December 1, 2020. Sims’s trial began on April 12, 2021. On appeal, Sims argues
that the delay violated his constitutional right to a speedy trial. As we explain, we
conclude that this issue is not properly before us because Sims did not raise it in
the circuit court, either at trial or in his postconviction motion.

¶48 In order to preserve an issue, a party must raise it “with sufficient
prominence such that the [circuit] court understands that it is called upon to make
a ruling.” Schwittay v. Sheboygan Falls Mut. Ins. Co., 2001 WI App 140, ¶16
n.3, 246 Wis. 2d 385, 630 N.W.2d 772.

¶49 Mere lapse of time does not constitute a denial of the right to speedy
trial. Commodore v. State, 33 Wis. 2d 373, 377, 147 N.W.2d 283 (1967). It is the
defendant’s affirmative duty to insist upon a speedy trial. Johnson v. State, 39
Wis. 2d 415, 417, 159 N.W.2d 48 (1968).

¶50 Additionally, the Rules of Appellate Procedure provide that a
defendant in a criminal appeal “shall file a motion for postconviction or
postdisposition relief before a notice of appeal is filed unless the grounds for
seeking relief are sufficiency of the evidence or issues previously raised.” WIS.
STAT. RULE 809.30(2)(h) (emphasis added); see also WIS. STAT. § 974.02(2)
(requiring postconviction motions prior to appeal for issues other than sufficiency
of the evidence or those previously raised). These provisions advance the policy
that “it is better to give the circuit court, which is familiar with the facts and

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP865-CR

issues, an opportunity to correct any error it has made before requiring an
appellate court to expend its resources in review.” State v. Walker, 2006 WI 82,
¶30, 292 Wis. 2d 326, 716 N.W.2d 498. Furthermore, raising an issue in the
circuit court provides the opposing party with an opportunity to provide factual
submissions that may refute the claim. Gruber v. Village of N. Fond du Lac,
2003 WI App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 692. Accordingly, this
court will deem forfeited and need not address any issue other than the sufficiency
of the evidence that has not been preserved in the circuit court. State v. Hayes,
167 Wis. 2d 423, 425-26, 481 N.W.2d 699 (Ct. App. 1992); State v. Klapps, 2021
WI App 5, ¶23 n.3, 395 Wis. 2d 743, 954 N.W.2d 38.

¶51 Sims did not raise the constitutional speedy trial issue that he
presents on appeal by either pretrial or postconviction motions in the circuit court.
Merely making a speedy trial demand is not the same as requesting relief based on
an alleged constitutional violation. Sims does not identify any location in the
record showing that this issue was presented to or decided by the circuit court.
Accordingly, the speedy trial challenge that he makes for the first time on appeal
is not properly before us.

CONCLUSION

¶52 For the reasons stated, we affirm the circuit court’s order denying
Sims’s motion for postconviction relief without an evidentiary hearing.

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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