State v. John Joseph Norman, 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.
June 11, 2025
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. 2024AP771-CR Cir. Ct. No. 2022CF71

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN JOSEPH NORMAN, III,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Washington County: RYAN J. HETZEL, Judge. Affirmed.

Before Neubauer, Grogan, and Lazar, 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. 2024AP771-CR

¶1 PER CURIAM. John Joseph Norman, III, appeals a judgment of
conviction, entered following his no contest plea, for first-degree recklessly
endangering safety. He also appeals an order denying postconviction relief. On
appeal, Norman argues the circuit court erred by rejecting his argument that he
received ineffective assistance of trial counsel without first holding a hearing on his
claim. Based upon our review of the briefs and Record, we affirm.

¶2 According to a criminal complaint, Norman discharged his shotgun
through his front door as a DoorDash delivery person was walking up the front door
steps to deliver pizzas. When police arrived, Norman claimed the shotgun
accidentally discharged, and he did not know the delivery person was on his porch
when it occurred, though he admitted he had ordered pizzas through DoorDash that
evening. Police could smell intoxicants coming from Norman, his eyes were red
and bloodshot, and he sometimes forgot what questions he was asked. Norman
exhibited signs of impairment on field sobriety tests, and police obtained a warrant
to draw his blood and search his house. He had a blood-alcohol concentration of
.12. In his home, police found a “12 gauge shotgun on the floor in front of the
couch,” a spent shotgun shell on top of some blankets on the couch, shotgun shell
wadding, an open Tito’s Vodka bottle that was one-fourth full, and several types of
ammunition and gun-related items. Norman was also on Trazodone for insomnia.
Further, at the time of this incident, Norman was on bond with a condition to
maintain absolute sobriety. The State charged Norman with first-degree recklessly
endangering safety with use of a dangerous weapon and felony bail jumping.

¶3 Pursuant to a plea agreement, Norman pled to first-degree recklessly
endangering safety without the use-of-a-dangerous-weapon enhancer. The felony
bail-jumping charge was dismissed and read in. His attorney explained Norman
was pleading no contest for two reasons:

2
No. 2024AP771-CR

Number one, as you can see from the criminal complaint,
Mr. Norman has absolutely -- Well, he has almost very little
memory of the event from that night, so we’re taking the
word of law enforcement and the rest of the witnesses in this
case; and also t[wo] because of the possibility of some civil
litigation.

The circuit court accepted Norman’s plea, found him guilty, and sentenced him to
prison.

¶4 After sentencing, Norman moved to withdraw his plea on the basis
that trial counsel was ineffective for failing to advise him of a McIntosh1 defense.
He alleged that due to his intoxication, he had no recollection of the incident. He
stated he did not know that, pursuant to McIntosh, he could ask the circuit court to
determine whether his amnesia denied him a fair trial. Had he known this, he would
not have entered a plea and would have proceeded to trial.

¶5 The circuit court found that Norman’s motion failed to plead
sufficient facts to establish that his self-induced drug and alcohol related blackout
on the night of the incident would support a defense of amnesia. The court also
noted that Norman’s motion was an attempt to revive the defense of voluntary
intoxication, which the Legislature repealed. The court determined trial counsel
was not ineffective, and it denied Norman’s motion for plea withdrawal. Norman
appeals.

1
State v. McIntosh, 137 Wis. 2d 339, 404 N.W.2d 557 (Ct. App. 1987). In McIntosh, we
determined that “amnesia does not by itself either render a defendant incompetent to stand trial or,
if tried, unable to be tried fairly.” Id. at 347. We noted “[t]here will be cases, however, where the
fact of amnesia will deny an otherwise competent defendant a fair trial.” Id. at 348. “Where …
permanent amnesia has been medically established, and competency in the sense of understanding
the charges and procedures and assisting in the defense is not at issue, the question must be
considered from the objective standpoint of whether, despite the amnesia, the defendant can receive
a fair trial.” Id. at 348-49. Circuit courts consider a multifactor analysis to determine the effect of
the defendant’s amnesia on the fairness of trial. Id. at 349-50.

3
No. 2024AP771-CR

¶6 A defendant seeking to withdraw a plea after sentencing must
establish plea withdrawal is necessary to correct a manifest injustice. State v.
Savage, 2020 WI 93, ¶24, 395 Wis. 2d 1, 951 N.W.2d 838. “One way to
demonstrate manifest injustice is to establish that the defendant received ineffective
assistance of counsel.” Id., ¶25 (citation omitted).

¶7 “A motion claiming ineffective assistance of counsel does not
automatically trigger a right to a Machner[2] testimonial hearing.” State v. Phillips,
2009 WI App 179, ¶17, 322 Wis. 2d 576, 778 N.W.2d 157. The circuit court has
discretion to deny an evidentiary hearing if “the defendant fails to allege sufficient
facts in his or her motion, if the defendant presents only conclusory allegations or
subjective opinions, or if the record conclusively demonstrates that he or she is not
entitled to relief.” Id.

¶8 A claim of ineffective assistance of counsel must establish both
deficient performance and prejudice, and failure to show either prong defeats the
claim. Savage, 395 Wis. 2d 1, ¶27; see also Strickland v. Washington, 466 U.S.
668, 687 (1984). Norman claims trial counsel was deficient for failing to advise
him of a McIntosh defense.

¶9 McIntosh allows an amnestic defendant to ask the circuit court to
consider whether the defendant’s amnesia denied him or her a fair trial. State v.
McIntosh, 137 Wis. 2d 339, 348-49, 404 N.W.2d 557 (Ct. App. 1987). In making
that determination, courts consider a multifactor analysis as outlined in McIntosh.
Id. at 349-50. However, before the McIntosh framework even applies, a defendant
must show that “permanent amnesia has been medically established.” Id. at 348. A

2
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

4
No. 2024AP771-CR

defendant bears the burden of establishing his or her amnesia by a “clear
preponderance of the credible evidence.” Muench v. State, 60 Wis. 2d 386, 392-93,
210 N.W.2d 716 (1973), overruled on other grounds by Schimmel v. State, 84
Wis. 2d 287, 267 N.W.2d 271 (1978), overruled by Steele v. State, 97 Wis. 2d 72,
294 N.W.2d 2 (1980).

¶10 Here, nothing in Norman’s postconviction motion suggests Norman
has “permanent amnesia [that] has been medically established.” See McIntosh, 137
Wis. 2d at 348. He simply claims to not remember the underlying incident, and
alleges he told his father and his attorneys about his lack of recollection. Without
medically establishing his amnesia, Norman is precluded from raising a due process
claim based on amnesia. His postconviction motion does not establish he would
have been entitled to assert a McIntosh defense. See Savage, 395 Wis. 2d 1, ¶38
(counsel not deficient if defense is not available). He has not established counsel
was ineffective.

¶11 Further, and notwithstanding the fact that the postconviction motion
fails to allege that Norman has medically established permanent amnesia, Norman
failed to plead facts the circuit court would have considered in his favor under the
McIntosh framework. As stated previously, under McIntosh, courts consider a
multifactor analysis to determine whether an amnestic defendant can receive a fair
trial:

(1) The extent to which the amnesia affected the defendant’s
ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s
ability to testify in his own behalf.

(3) The extent to which the evidence in suit could be
extrinsically reconstructed in view of the defendant’s
amnesia. Such evidence would include evidence relating to
the crime itself as well as any reasonably possible alibi.

5
No. 2024AP771-CR

(4) The extent to which the Government assisted the
defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important
here will be whether the Government’s case is such as to
negate all reasonable hypotheses of innocence. If there is
any substantial possibility that the accused could, but for his
amnesia, establish an alibi or other defense, it should be
presumed that he would have been able to do so.

(6) Any other facts and circumstances which would indicate
whether or not the defendant had a fair trial.

McIntosh, 137 Wis. 2d at 349-50. Other than his self-serving claims of his inability
to recall the incident, Norman pled no facts that would allow him to prevail under
the six-factor McIntosh framework. He has not established trial counsel was
ineffective. See Savage, 395 Wis. 2d 1, ¶38.

¶12 Finally, we observe there is no law applying McIntosh to situations
where the defendant’s “amnesia” is purportedly caused by voluntarily getting so
intoxicated that the person no longer remembers the details of his or her crime. In
McIntosh, for example, the psychiatrist opined McIntosh’s amnesia was permanent
and consistent with head injuries he sustained in the accident. McIntosh, 137
Wis. 2d at 346. Trial counsel can never be ineffective for failing to raise an issue
of unsettled law. State v. Breitzman, 2017 WI 100, ¶49, 378 Wis. 2d 431, 904
N.W.2d 93. Because Norman’s postconviction motion for plea withdrawal did not
establish counsel was ineffective, we conclude the circuit court properly denied
Norman’s motion 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 (2023-24).

6