State v. Telly Bernardo Johnson

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 17, 2020
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. 2018AP971 Cir. Ct. No. 2013CF5568

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TELLY BERNARDO JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEFFREY A. WAGNER, Judge. Affirmed.

Before Brash, P.J., Blanchard and Donald, 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. 2018AP971

¶1 PER CURIAM. Telly Bernardo Johnson, pro se, appeals an order
denying his WIS. STAT. § 974.06 (2017-18)1 motion for postconviction relief.
Johnson asserts that his appellate counsel was ineffective regarding the claims that
were raised in his direct appeal, arguing that appellate counsel should have instead
raised claims of ineffective assistance of Johnson’s trial counsel regarding various
alleged errors relating to evidentiary issues.2

¶2 The postconviction court3 determined that Johnson’s new claims in
his WIS. STAT. § 974.06 motion were not clearly stronger than the claims raised in
his direct appeal, and denied Johnson’s motion without a hearing. We agree that
Johnson failed to establish that his new claims were clearly stronger, and therefore
conclude that they are procedurally barred. Accordingly, we affirm.

BACKGROUND

¶3 Johnson was charged with two counts of first-degree reckless
homicide for the deaths of Victoria Donnewald and Timothy John Stancyzk, both
of whom died in December 2012 as a result of heroin overdoses. Through the
investigations into their deaths, police learned that Johnson was the dealer who

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
We note that Johnson’s appellate brief also includes a petition for a writ of habeas
corpus on the grounds that his appellate counsel was ineffective in his direct appeal regarding his
claim of insufficiency of the evidence and challenging the trial court’s denial of his motion for
severance. We do not address that petition in this decision.
3
The Honorable Jeffrey A. Wagner decided Johnson’s WIS. STAT. § 974.06 motion, and
we refer to him as the postconviction court. The Honorable Timothy G. Dugan presided over the
jury trial and sentenced Johnson, and we refer to him as the trial court. We note that a previous
decision by this court—for Johnson’s direct appeal—indicated that the Honorable Daniel L.
Konkol sentenced Johnson; however, the record reflects that Judge Dugan conducted the
sentencing hearing and imposed Johnson’s sentence.

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No. 2018AP971

had provided the heroin that was used by the victims when they overdosed. Police
later amended the information to include several charges of delivery of a
controlled substance against Johnson.

¶4 The matter proceeded to trial in December 2014. A jury found
Johnson guilty of both charges of first-degree reckless homicide, as well as two
charges of delivery of a controlled substance—although the State subsequently
moved to dismiss one of those convictions. The trial court then sentenced Johnson
in February 2015 to a thirty-five year sentence for the death of Donnewald, a
twenty-five year sentence in the death of Stancyzk, and a six year sentence for the
remaining conviction for delivery of a controlled substance.

¶5 Johnson’s appellate counsel initiated a direct appeal in July 2015.
That appeal raised three claims related to Johnson’s reckless homicide
convictions: challenging the sufficiency of the evidence, specifically with regard
to the chief medical examiner’s testimony regarding the victims’ causes of death;
challenging the trial court’s denial of his request to modify the reckless homicide
jury instruction, in which Johnson sought to add the requirement that there must be
a finding that the deaths were a foreseeable consequence of Johnson’s delivery of
the heroin—essentially adding an element to the statutory requirements of reckless
homicide; and challenging the trial court’s denial of his motion for severance of
the reckless homicide charges, arguing that the severity of the crimes constituted
substantial prejudice that required severance. See State v. Johnson,
No. 2015AP1514-CR, unpublished slip op. ¶1 (WI App Sept. 22, 2016). This
court rejected Johnson’s claims and affirmed the judgment of conviction. Id. The
Wisconsin Supreme Court subsequently denied Johnson’s petition for review.

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¶6 Johnson then filed the WIS. STAT. § 974.06 motion underlying this
appeal in April 2018. In that motion, Johnson asserted that his appellate counsel
was ineffective regarding the claims that were raised in his direct appeal. Johnson
contends that appellate counsel should have raised the ineffective assistance of
trial counsel claims that Johnson raised in his § 974.06 motion, in which he
alleged seven errors of trial counsel relating to evidentiary issues that arose during
his trial. Johnson argues that these new claims are “obvious and strong,” as
compared to the claims raised by appellate counsel in his direct appeal.

¶7 The postconviction court addressed each of Johnson’s seven claims,
finding that his arguments all failed to substantiate claims of ineffective assistance
of trial counsel. Therefore, the court concluded that Johnson’s new claims were
not clearly stronger than the claims raised by his appellate counsel in his direct
appeal. As a result, the court denied Johnson’s motion without a hearing. This
appeal follows.

DISCUSSION

¶8 The ineffective assistance of trial counsel claims raised by Johnson
in his WIS. STAT. § 974.06 motion certainly could have been brought in his direct
appeal. Therefore, he must establish that there was a “sufficient reason” for not
bringing these claims in his direct appeal; otherwise, the new claims are
procedurally barred. See State v. Romero-Georgana, 2014 WI 83, ¶¶4-5, 360
Wis. 2d 522, 849 N.W.2d 668.

¶9 “In some instances, ineffective assistance of [appellate] counsel may
be a sufficient reason for failing to raise an available claim … on direct appeal.”
Id., ¶36. However, to prove that his appellate counsel was ineffective for failing
to bring the ineffective assistance of trial counsel claims, Johnson “bears the

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burden of proving that trial counsel’s performance was deficient and prejudicial.”
See State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468, 673 N.W.2d 369.

¶10 To prove ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficiency prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant
“must prevail on both parts of the test to be afforded relief.” State v. Allen, 2004
WI 106, ¶26, 274 Wis. 2d 568, 682 N.W.2d 433. We review de novo “‘the legal
questions of whether deficient performance has been established and whether it
led to prejudice rising to a level undermining the reliability of the proceeding.’”
State v. Roberson, 2006 WI 80, ¶24, 292 Wis. 2d 280, 717 N.W.2d 111 (citation
omitted). However, “[a] court need not address both components of this inquiry if
the defendant does not make a sufficient showing on one.” State v. Smith, 2003
WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶11 Furthermore, a claim of ineffective assistance requires that a
postconviction evidentiary hearing be held “to preserve the testimony of trial
counsel.” State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App.
1979). Still, a defendant is not automatically entitled to a Machner hearing.
State v. Bentley, 201 Wis. 2d 303, 310-11, 548 N.W.2d 50 (1996). Rather, the
postconviction court is required to hold an evidentiary hearing only if the
defendant has alleged “sufficient material facts that, if true, would entitle the
defendant to relief.” Allen, 274 Wis. 2d 568, ¶9. This is a question of law that we
review de novo. Id.

¶12 If, on the other hand, the postconviction motion “does not raise facts
sufficient to entitle the movant to relief, or presents only conclusory allegations, or
if the record conclusively demonstrates that the defendant is not entitled to relief,”

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the trial court, in its discretion, may either grant or deny a hearing. Id. We will
uphold such a discretionary decision if the trial court “has examined the relevant
facts, applied the proper legal standards, and engaged in a rational decision-
making process.” Bentley, 201 Wis. 2d at 318.

¶13 Specifically with regard to a defendant who alleges in a WIS. STAT.
§ 974.06 motion that his appellate counsel was ineffective for failing to bring
certain viable claims, that defendant “must demonstrate that the claims he wishes
to bring are clearly stronger than the claims [appellate] counsel actually brought.”
Romero-Georgana, 360 Wis. 2d 522, ¶4. This is determined by “compar[ing] the
arguments now proposed against the arguments previously made.” See id., ¶46;
see also Lee v. Davis, 328 F.3d 896, 900 (7th Cir. 2003).

¶14 We note, however, that “[a]ppellate lawyers are not required to
present every nonfrivolous claim on behalf of their clients—such a requirement
would serve to bury strong arguments in weak ones—but they are expected to
‘select[ ] the most promising issues for review.’” Shaw v. Wilson, 721 F.3d 908,
915 (7th Cir. 2013) (citation omitted; emphasis and second set of brackets in
Shaw). Indeed, one of the primary functions of appellate counsel is to “winnow
the available arguments and exercise judgment about which are most likely to
succeed on appeal.” Gray v. Norman, 739 F.3d 1113, 1118 (8th Cir. 2014).

¶15 In his WIS. STAT. § 974.06 motion, Johnson lists seven alleged
errors of trial counsel—all relating to evidentiary issues—that he believes
constitute ineffective assistance on the part of his trial counsel: (1) that counsel
allowed the State to introduce significant hearsay evidence for which there was no
foundation in violation of the confrontation clause; (2) that counsel failed to object
to the use and admission of toxicology and DNA reports; (3) that counsel failed to

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retain an expert to rebut or challenge the medical examiner’s opinions; (4) that
counsel failed to object to expert witness testimony concerning the cell tower
evidence; (5) that counsel failed to introduce evidence from Johnson’s cell phone;
(6) that counsel failed to object to expert witness testimony which failed to meet
the required standards of proof; and (7) that counsel failed to properly investigate
and introduce critical defense evidence.

¶16 However, Johnson offers no evaluation of why his new ineffective
assistance claims are clearly stronger than the claims raised in his direct appeal.
Rather, he merely argues that because this court rejected those claims in his direct
appeal, his new claims must be clearly stronger. That conclusory statement is not
sufficient to warrant a Machner hearing. See Allen, 274 Wis. 2d 568, ¶9. Rather,
Johnson needed to assert “why it was deficient performance for [appellate] counsel
not to raise these issues,” and further, “how he intended to establish deficient
performance if he was given the chance at an evidentiary hearing.” State v.
Balliette, 2011 WI 79, ¶¶65, 68, 336 Wis. 2d 358, 805 N.W.2d 334 (emphasis in
Balliette). Johnson failed to establish these requirements in his WIS. STAT.
§ 974.06 motion.

¶17 In the absence of such an evaluation by Johnson, the postconviction
court addressed each of the seven issues that he raised under the ineffective
assistance rubric set forth in Strickland and its progeny, and rejected all of them.
We agree that Johnson’s WIS. STAT. § 974.06 motion is insufficient to establish
his claims of ineffective assistance of trial counsel.

¶18 Under the Strickland test, deficient performance is established if the
defendant proves “that counsel’s conduct [fell] below an objective standard of
reasonableness.” State v. Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700

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N.W.2d 62. However, “[i]t is well-established that trial counsel could not have
been ineffective for failing to make meritless arguments.” State v. Allen, 2017 WI
7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245. The conduct of Johnson’s trial counsel
that he challenges—the failure to make certain objections and arguments about
evidentiary issues—were not errors at all, and thus did not constitute deficient
performance. See id.

¶19 For example, Johnson contends that the testimony of four witnesses
included inadmissible hearsay. However, much of the challenged testimony was
not hearsay—rather, it consisted of prior consistent statements that were
admissible under WIS. STAT. § 908.01(4)(a)2.; statements not being offered to
prove the truth of the matter asserted, admissible pursuant to § 908.01(3); or
admissions of a party opponent as permitted by § 908.01(4)(b).

¶20 Johnson also challenges on hearsay grounds testimony provided by
Donnewald’s friend, Amanda Balistrieri, regarding statements made by
Donnewald in text conversations with Balistrieri. Those statements, however, fall
under the hearsay exception regarding a statement against interest made by a
declarant who is unavailable—which Donnewald is, since she is deceased—
pursuant to WIS. STAT. § 908.045(4). Therefore, because the testimony
challenged by Johnson was admissible, any objection by his trial counsel would
have been without merit.

¶21 In the same vein, Johnson’s arguments that trial counsel failed to
object to the State’s experts are equally meritless. The experts’ testimony
involved reports prepared for trial—the toxicology and DNA reports introduced by
the medical examiner, and the report regarding cell tower evidence—to which
both parties stipulated. However, even without those stipulations, the evidence

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was admissible through other witnesses also included on the State’s witness list.
Furthermore, Johnson’s challenge to the trial testimony of expert Nabil Alfahel—
whose testimony as to the make and model of a vehicle seen in a surveillance
video was admitted after a Daubert4 hearing—also fails, since trial counsel
unsuccessfully objected to Alfahel’s qualifications during the hearing. Any
additional objections by trial counsel would have been meritless.

¶22 Similarly, Johnson’s assertions that trial counsel failed to retain
necessary experts are conclusory and insufficient to demonstrate deficiencies in
trial counsel’s performance. For instance, Johnson argues that trial counsel should
have called an expert to refute the medical examiner’s testimony, without
evidentiary support as to what such an opposing expert would have testified; he
claims that evidence from a cell tower regarding the location of his phone at
certain times was inaccurate and thus inadmissible, with no support for his
argument outside of an article from The New Yorker magazine; and his claim that
trial counsel should have introduced evidence that he maintained a different cell
phone number includes no support for what this evidence would prove or
disprove.

¶23 Additionally, Johnson asserts that his trial counsel did not
adequately cross-examine Balistrieri, who Johnson contends was a key State
witness, in order to sufficiently challenge her credibility. Johnson argues that had
trial counsel been better prepared to question this witness, she could have
extracted negative “evidence” about Balistrieri that was critical to his defense.
However, the jury did hear from Balistrieri that she was a homeless heroin addict

4
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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when she knew Donnewald and that she had texted Donnewald before her death
about obtaining and using heroin. Counsel even tried to elicit testimony from
Balistrieri that she had engaged in prostitution; an objection by the State based on
relevance was sustained by the trial court. Johnson further alleges that it was a
“business associate” of Balistrieri’s who supplied the heroin to Donnewald, but
provides no support for these allegations. Thus, Johnson has not sufficiently pled
this claim to demonstrate that he is entitled to relief. See Allen, 274 Wis. 2d 568,
¶9.

¶24 In short, none of the alleged errors argued by Johnson substantiate
his new claims of ineffective assistance of trial counsel. Johnson’s failure to meet
this burden means that he also failed to meet his burden of demonstrating that his
appellate counsel was ineffective for not raising these claims in his direct appeal.
See Ziebart, 268 Wis. 2d 468, ¶15. Indeed, his new claims are plainly not clearly
stronger than the claims that were raised in his direct appeal, and are therefore
procedurally barred. See Romero-Georgana, 360 Wis. 2d 522, ¶¶4-5.
Accordingly, we affirm the order of the postconviction court denying Johnson’s
WIS. STAT. § 974.06 motion without a hearing.

By the Court.—Order affirmed.

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

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