State v. James B. Pemberton, II

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.
January 6, 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. 2020AP95-CR Cir. Ct. No. 2016CF242

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMES B. PEMBERTON, II,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Juneau County: PAUL S. CURRAN, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Nashold, 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. 2020AP95-CR

¶1 PER CURIAM. James B. Pemberton, II, pro se, appeals the
judgment convicting him of possessing tetrahydrocannabinols (THC) (more than
200 grams but less than 1,000 grams) with intent to deliver as a party to a crime.
He also appeals the order denying his postconviction motion. Pemberton argues
that the search warrant which the police executed at his residence was not
supported by probable cause and that he has newly discovered evidence
warranting plea withdrawal. We reject both of these contentions and affirm.

BACKGROUND

¶2 In executing a search warrant at Pemberton’s residence, police
discovered evidence of a marijuana grow operation. As a result, the State charged
Pemberton with possession with intent to deliver THC as a party to a crime,
maintaining a drug trafficking place as a party to a crime, and possession of drug
paraphernalia.

¶3 After the State prevailed at a suppression hearing triggered by
Pemberton’s motion challenging the sufficiency of the search warrant affidavit,
Pemberton entered a plea of guilty to possession with intent to deliver THC as a
party to a crime.

¶4 Pemberton filed a postconviction motion, arguing that he had newly
discovered evidence proving that there was inaccurate information in the affidavit
for the search warrant. Alternatively, he argued that his trial counsel was
ineffective for not seeking out and discovering the allegedly inaccurate
information.

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¶5 The circuit court held an evidentiary hearing before denying
Pemberton’s motion. Additional background information is included below as
necessary.

DISCUSSION

A. Challenge To The Search Warrant Affidavit.

¶6 Pemberton argues that the circuit court erred when it denied his
motion to suppress. He contends that the search warrant affidavit lacked probable
cause to search his residence. We conclude that one reasonable inference from all
of the information in the search warrant affidavit was that Pemberton was a
regular drug dealer who kept drugs that he was selling at his residence.

¶7 In reviewing a challenge to a search warrant, we give deference to
the judge’s decision to issue the warrant. See State v. Sloan, 2007 WI App 146,
¶8, 303 Wis. 2d 438, 736 N.W.2d 189. Our review is limited to the record as it
existed before the judge at the time the warrant was issued. See id. The inquiry
before us is whether the judge “was ‘apprised of sufficient facts to excite an honest
belief in a reasonable mind that the objects sought are linked with the commission
of a crime, and that they will be found in the place to be searched.’” Id. (quoted
source omitted). “We will uphold the decision to issue the warrant unless the facts
in the supporting affidavit ‘were clearly insufficient to support a finding of
probable cause.’ In reviewing a probable cause assessment, we examine the
totality of the circumstances.” State v. Casarez, 2008 WI App 166, ¶10, 314
Wis. 2d 661, 762 N.W.2d 385 (quoted source omitted).

¶8 Here, the search warrant affidavit, which sought objects related to
the manufacture, distribution, or delivery of controlled substances or controlled

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substance analogs, set forth allegations of fact based on averments of three police
officers that we now detail.

¶9 On October 23, 2016, an anonymous source contacted Officer
Richard Lueneberg of the Mauston Police Department. The source said that her
son had been buying marijuana from a person named Joey Bayne for over one
year. According to the source, Bayne would travel approximately once a week to
pick up the marijuana he sold. The source further indicated that Bayne lived “on
Hwy 80 between New Lisbon, WI and Elroy, WI.” 1 Officer Lueneberg looked up
the driver’s license for a Joey Bayne, which listed an address of “N5391 State
Rd[.] 80[,] New Lisbon, WI 53950.” Officer Lueneberg averred that this address
was “consistent with the anonymous source’s statement” regarding Bayne’s
residence location.

¶10 Five days later, Officer Nick Wilke of the New Lisbon Police
Department learned from a confidential informant (“CI 16-007”) that a person
named “Jimmy” was dealing THC in the City of New Lisbon on a regular basis.
CI 16-007 said that he knew “Jimmy” because they had mutual friends.
According to CI 16-007, “Jimmy” went by the name “Osiris Grissom” on
Facebook and was also known to Officer Wilke to go by the name of “Batman.”
CI 16-007 believed that “Jimmy” lived in the county, not the city. Through other
information provided to Officer Wilke, “Jimmy” was identified by his Facebook
profile as Pemberton. According to the affidavit: “This association was made by
comparing pictures on [Pemberton’s] Facebook and his Wisconsin Driver’s

1
We take judicial notice of the fact that Elroy and New Lisbon are located
approximately 12 miles apart and are connected by State Trunk Highway 80.

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No. 2020AP95-CR

License Photo. This association was also made by comparing [Pemberton’s]
address from his driver’s license to pictures in his Facebook account.” Officer
Wilke averred that he knew CI 16-007 to be credible and reliable based on their
previous interactions. He also stated that CI 16-007’s information “was validated
and found to be true about the identity of James/Osiris/Batman.”

¶11 Nearly a month later, on November 26, 2016, Officer Kyle Walker,
also of the New Lisbon Police Department, learned from a confidential informant
(“CI 16-032”) that Pemberton was “transporting and distributing marijuana in the
City of New Lisbon and surrounding areas.” CI 16-032 said that he had purchased
marijuana from Pemberton on several occasions “in the City of New Lisbon near
the intersection of South Division Street and West Pearl Street as well as at
[CI 16-032’s] residence in New Lisbon.” According to CI 16-032, Pemberton had
a fictitious “Facebook profile name of ‘Osiris Grissom’ and commonly used the
nicknames ‘Batman’ or ‘Jimmy’ with people he did not know.” Pemberton would
sell marijuana using his Chevrolet Cruze. While CI 16-032 “never purchased
marijuana from [Pemberton’s] residence,” he knew that Pemberton “resided in or
near Elroy, Wisconsin.” CI 16-032 relayed that Pemberton would “only have a
specific amount of marijuana on his person while a sale was being done and he
would have to leave to obtain more drugs for another sale.”

¶12 Officer Walker averred that he found CI 16-032 to be truthful and
reliable in making these allegations by (1) making a positive comparison between
the profile photo of “Osiris Grissom” on Facebook and Pemberton’s driver’s
license photo, (2) discovering that Pemberton was the registered owner of a
Chevrolet Cruze, and (3) learning through Pemberton’s vehicle registration and
driver’s license that he lived at “N5391 State Road 80, New Lisbon, which is
located between New Lisbon and Elroy.” Separately, Officer Walker averred that,

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to the officer’s knowledge, CI 16-032 had been honest in all his past interactions
with Officer Walker.

¶13 Also, according to the search warrant affidavit, on December 6,
2016, Officer Walker took his drug detection dog to “the New Lisbon School” and
had the dog sniff the locker of William Pemberton (not the defendant, James).
During a “free air sniff” (that is, a sniff of the air generally and not of any
particular object) outside this locker, the dog alerted to the odor of an illegal drug.
William Pemberton also resided at N5391 State Road 80 in New Lisbon.

¶14 Turning from the averments in the affidavit to Pemberton’s motion
to suppress, Pemberton argued that, while the search warrant affidavit “may have
provided probable cause to search [his] vehicle, it lacked any connection to the
Pemberton residence itself.” On appeal, he continues to argue that neither the
anonymous source nor the confidential informants provided allegations that
created a nexus between any drug offense and his residence. He challenges the
execution of the free air sniff at the school and asserts that the police should have
done more to corroborate the information they received from the anonymous
source and the confidential informants.

¶15 In State v. Ward, 2000 WI 3, 231 Wis. 2d 723, 604 N.W.2d 517, our
supreme court stated that the information presented to the warrant-issuing judge
supported a reasonable inference that drug-crime evidence would be found at the
defendant’s home. This information included a person identifying the individual
who supplied him with marijuana as “Lance who lives on Royce” street. Id.,
¶¶29-30. Our supreme court explained that, based on the information that the
person obtained marijuana from Lance where Lance lived and the large quantity of
drugs involved, “[t]he obvious and reasonable inference is that Lance dealt drugs

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No. 2020AP95-CR

from his home.” Id., ¶30. The court continued: “It is not the only inference that
can be drawn, but it is certainly a reasonable one. The test is not whether the
inference drawn is the only reasonable inference. The test is whether the inference
drawn is a reasonable one.” Id. The court rejected the defendant’s argument that
such an inference could not be made without an explicit statement in the affidavit
that linked the illegal drugs to the defendant’s residence. Id., ¶31.

¶16 The affidavit here, in some respects resembling the affidavit in
Ward, contained sufficient facts to support a reasonable inference that drug-crime
evidence would be found in Pemberton’s residence and therefore to support
probable cause to issue a search warrant. See id., ¶27. The allegations here
involved two different drug transactions connected to residents—Joey Bayne and
Pemberton—who allegedly resided at the same address: N5391 State Road 80,
New Lisbon. CI 16-032 told police that he knew Pemberton to deal drugs from his
Chevrolet Cruze and that Pemberton would “only have a specific amount of
marijuana on his person while a sale was being done and he would have to leave to
obtain more drugs for another sale.” Additionally, the police dog alerted to the
odor of illegal drugs at William Pemberton’s locker, and the affidavit indicated
that William Pemberton also resided at N5391 State Road 80, New Lisbon.

¶17 “The well-established test for probable cause is that it is ‘flexible,’
and is ‘a practical commonsense decision,’ that is made considering ‘the totality of
the circumstances.’” State v. Silverstein, 2017 WI App 64, ¶22, 378 Wis. 2d 42,
902 N.W.2d 550 (quoted sources omitted). While Pemberton challenges the
reliability of individual pieces of information, “[p]rove-up of every detail is not
required in a warrant affidavit, as is consistent with the policy that is designed to
encourage law enforcement to obtain search warrants in the first place.” See id.
Thus, we do not “focus on individual parts” of a supporting affidavit to determine

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No. 2020AP95-CR

whether it established probable cause. State v. Schaefer, 2003 WI App 164, ¶17,
266 Wis. 2d 719, 668 N.W.2d 760. Rather, we assess the “statements viewed in
their entirety, and the reasonable inferences that may be drawn from those facts.”
Id.

¶18 Here, a reasonable inference from all of the information in the search
warrant affidavit was that Pemberton was a regular drug dealer who kept the drugs
that he was selling somewhere other than his car, and one obvious potential
location would be his residence. We conclude that the facts as a whole, and the
reasonable inferences that may be drawn from those facts, stated probable cause to
believe that evidence of a crime would be found at the Pemberton residence.2

B. Denial Of Postconviction Motion Based On Newly Discovered
Evidence.

¶19 We turn to Pemberton’s postconviction motion based on newly
discovered evidence related to the dog sniff at New Lisbon school. As we now
explain, the circuit court reasonably determined that the entire theory of this
motion fell apart at an evidentiary hearing.

¶20 In his motion, Pemberton asserted that he had an investigator speak
with two principals at the school. The first, Gary Syftestad, said that he recalled
that Officer Walker came to the school with the police dog around December 6,
2016 (the date reported in the search warrant affidavit). Syftestad said that he
accompanied Officer Walker to a set of high school lockers for the dog sniff.
Syftestad said that he could not remember the name of the student at issue but did

2
In light of this determination, we need not address the good-faith exception to the
exclusionary rule, which Pemberton references.

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No. 2020AP95-CR

not think that it was William Pemberton (whose locker was in the junior high).
According to Syftestad, there was “no hit,” so no locker search occurred.
Syftestad said that if there had been a positive hit, “he would not have walked
away and done nothing.” Syftestad said that there was no documentation of this
dog sniff “because nothing had happened.”

¶21 Pemberton additionally alleged in his postconviction motion that his
investigator spoke with a second principal, Mark Toelle, after learning that Officer
Walker spoke with Toelle on the day of the dog sniff at issue. Toelle “could not
remember for sure if there had been a sniff on December 6, 2016[,] or a sniff in
that time period involving [William] Pemberton.” He said that if he authorizes a
search, “he will typically be present for the search.” Toelle said that “there is
never a dog sniff done without an administrator being present.” According to
Toelle, if there is a positive hit on the locker, the locker is searched.

¶22 Pemberton attached to his postconviction motion a copy of the
School District of New Lisbon’s Bylaws and Policies. That document states that
when a dog sniff is performed, the principal “shall be responsible for the prompt
recording in writing of each student search[.]”

¶23 Pemberton’s postconviction motion also included correspondence
indicating that the School District of New Lisbon had no documentation regarding
“any soft lock down and the use of the police department and its drug sniffing dog
in any of [its] schools from approximately November 22, 2016[,] through
December 20, 2016.”

¶24 In light of this information, Pemberton argued that “the evidence of
the alleged dog sniff” was unreliable. Alternatively, Pemberton asserted that, if

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the circuit court concluded he was negligent for not discovering this information
earlier, it was because he received ineffective assistance of trial counsel.

¶25 During the evidentiary hearing on this motion in the circuit court,
Officer Walker testified that he took the dog to the school on December 6, 2016,
to conduct a dog sniff of William Pemberton’s locker. Even though Officer
Walker believed that he was legally justified in performing the search without
authorization from any school employee, as a courtesy he informed Principal
Toelle. Principal Toelle was not present for the search. During the search, the dog
alerted to the odor of an illegal drug outside William’s locker.

¶26 Dennis Birr, the superintendent of the School District of New
Lisbon, also testified at the evidentiary hearing. Birr explained that the School
District’s Bylaws and Policies govern situations in which the school initiates the
search. In contrast, Birr testified, when police initiate a search officers are not
bound by the school’s Bylaws and Policies. Birr testified that if an administrator
is available for a police-initiated search, that person might accompany the officer,
but “[o]therwise we allow the officer to go ahead and search.” Asked whether the
locker would be searched after a positive alert in that scenario, Birr testified,
“That’s totally up to the officer.” Birr further testified that it was also the officer’s
call whether to inform the school of the results of the search.

¶27 Pemberton called Principal Syftestad, who testified that in early
December 2016 he was present for a dog sniff that Officer Walker conducted at
the school. Syftestad testified that William Pemberton was not the subject of that
search.

¶28 Principal Toelle testified that he recalled that Officer Walker wanted
to search William Pemberton’s locker. Toelle said that he was not present when

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that search occurred. When asked why he told the defense investigator that, if he
had given permission for a drug dog sniff he would have been present for the
search, Toelle explained that he incorrectly thought that the investigator was
inquiring about a school-wide search. He testified: “If we were doing a
school[-]wide drug dog search, [there] would be an administrator along. This
was—[Officer Walker] simply wanted to do a walk-by and, I’ll just say, quick
search of the locker.”

¶29 Pemberton’s investigator testified that Toelle told her that “there’s
never a dog sniff done without an administrator being present,” that there would
have been documentation of the dog sniff, and “[i]f there’s no documentation, it
didn’t happen.” She testified that she did not ask Toelle about the difference
between a school-initiated search and a police-initiated search because Toelle did
not draw that distinction.

¶30 We turn to the applicable standards. “‘After sentencing, a defendant
who seeks to withdraw a guilty or no contest plea carries the heavy burden of
establishing, by clear and convincing evidence, that withdrawal of the plea is
necessary to correct a manifest injustice.’” State v. Ferguson, 2014 WI App 48,
¶24, 354 Wis. 2d 253, 847 N.W.2d 900 (quoted source and brackets omitted).

For newly discovered evidence to constitute a
manifest injustice and warrant the withdrawal of a plea the
following criteria must be met. First, the defendant must
prove, by clear and convincing evidence, that: (1) the
evidence was discovered after conviction; (2) the defendant
was not negligent in seeking evidence; (3) the evidence is
material to an issue in the case; and (4) the evidence is not
merely cumulative. If the defendant proves these four
criteria by clear and convincing evidence, the circuit court
must determine whether a reasonable probability exists that
a different result would be reached in a trial.

Id. (citation omitted).

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No. 2020AP95-CR

¶31 We review the circuit court’s decisions on the first four prongs for
erroneous exercises of discretion. See State v. Vollbrecht, 2012 WI App 90, ¶18,
344 Wis. 2d 69, 820 N.W.2d 443. However, the fifth prong, i.e., whether a
reasonable probability exists that a different result would be reached in a trial,
presents an issue of law. See id.

¶32 We agree with the State that Pemberton has not satisfied at least two
of the required factors: he does not have material evidence and he has not shown a
reasonable probability of a different outcome.

¶33 The evidence presented at the hearing was not material. Instead of
showing that the dog sniff of William Pemberton’s locker was unreliable, the
evidence at the hearing provided cumulative support for the State’s case. Insofar
as Pemberton was arguing that the dog sniff did not occur, the circuit court found
such an argument was “specious” in light of the evidence that was presented at the
hearing. The circuit court additionally found that the new evidence from the three
school administrators and the investigator “only corroborated what Chief Walker
said about the dog sniff and it corroborated that the dog sniff happened.”
Addressing the investigator’s testimony, the circuit court found the following:
“Once she heard, oh, all these searches have all kinds of documentation and that
sort of thing, she just stopped looking and never looked into the question of what
happens when the police call and ask for a search.”

¶34 We conclude that the circuit court properly exercised its discretion
when it concluded that the newly discovered evidence was not material. See State
v. Edmunds, 2008 WI App 33, ¶8, 308 Wis. 2d 374, 746 N.W.2d 590 (“A court
properly exercises its discretion if it relies on the relevant facts in the record and
applies the proper legal standard to reach a reasonable decision.”). Given the lack

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No. 2020AP95-CR

of materiality, we further conclude that Pemberton has not shown a reasonable
probability that a different result would be reached in a trial. Pemberton’s
circumstances would have been the same if he had discovered the evidence before
he entered his plea.

¶35 It appears that Pemberton alternatively argues that trial counsel
provided him with ineffective assistance in failing to do more to seek out the
information he contends was newly discovered. But for the reasons explained
above, it would not have mattered if counsel had in fact discovered and set forth
this information because it is not material to Pemberton’s case. See Strickland v.
Washington, 466 U.S. 668, 694 (1984) (demonstrating prejudice for purposes of
ineffective assistance of counsel requires a defendant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different”).3

By the Court.—Judgment and order affirmed.

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

3
Pemberton’s briefs are difficult to follow. Given his pro se status, we have made every
attempt to address his thinly developed arguments. However, to the extent that he intends to raise
arguments beyond those we address, we do not discuss them because they are undeveloped. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

13