State v. Robert C. Washington

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 8, 2019
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. 2018AP1771-CR Cir. Ct. No. 2014CF2814

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

ROBERT C. WASHINGTON,

DEFENDANT-APPELLANT.

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

Before Brash, P.J., Kessler and Dugan, JJ.

¶1 KESSLER, J. Robert C. Washington appeals a judgment of
conviction, following guilty pleas, of one count of first-degree reckless homicide
and one count of first-degree reckless injury. Washington also appeals the order
denying his motion for postconviction relief. We affirm.
No. 2018AP1771-CR

BACKGROUND

¶2 On June 30, 2014, Washington was charged with one count of first-
degree reckless homicide, with the use of a dangerous weapon, and one count of
first-degree reckless injury, with the use of a dangerous weapon. The charges
stemmed from a shooting incident which led to the death of one of Washington’s
sons, Robert, and the injury of another son, W.W.1 According to the complaint,
W.W. told police that he and his brother, Robert, were playing basketball outside
of Washington’s home when Washington came outside appearing to be
intoxicated. Washington interrupted the game and W.W. knocked Washington
over. The complaint further states that Washington then went back into the home
and came out with a gun. Washington fired two or three shots at W.W., striking
W.W. in the leg. Robert, who by that time began cutting the grass, heard the
gunshots and ran to Washington. Washington fired another shot, striking Robert.
When police arrived, Robert was pronounced dead at the scene.

¶3 The complaint further states that when police arrived, Washington
turned himself in and told police that W.W. “bull[ies] him.” Washington told
police that while Washington and Robert were playing basketball, W.W. hit
Washington and started swearing at him. Washington went back into the home,
retrieved a gun, and told W.W., “I’m tired of you talking to me like that.”
Washington told police that W.W. threw a basketball at him, causing the gun to go
off, striking the boys.

1
Because Washington and his son Robert share the same first and last name, we refer to
the defendant as “Washington,” and the victim as “Robert.”

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No. 2018AP1771-CR

¶4 Pursuant to a plea agreement, the State withdrew the penalty
enhancer and Washington pled guilty to both counts. On the homicide count, the
circuit court sentenced Washington to thirty-two years of initial confinement and
eight years of extended supervision. On the reckless injury count, the court
imposed a consecutive sentence of nine years of initial confinement and three
years of extended supervision.

¶5 Washington filed a postconviction motion, arguing, as relevant to
this appeal, that his trial counsel was ineffective for failing to advise him about the
possibility of requesting a jury instruction for lesser-included offenses with respect
to the charge of first-degree reckless homicide if Washington had gone to trial.
Washington argued that “at the time of his pleas, he did not know he could request
instructions for lesser-included offenses at trial. Rather, he believed that the jury
would simply make an all-or-nothing determin[ation] on whether he was guilty of
the offenses charged in the criminal complaint.” Alternatively, Washington
argued for resentencing on the grounds that counsel was ineffective at sentencing
for failing to advocate for him. Washington then filed a supplemental motion
alleging that he was entitled to withdraw his pleas on the grounds of newly
discovered evidence. The supplemental motion alleged that W.W. acknowledged
throwing a basketball at Washington just before the shooting, which was not
included in W.W.’s initial statements to police.

¶6 The circuit court held a Machner2 hearing. Trial counsel, Robert
Taylor, testified that he did not know specifically what he discussed with
Washington about lesser-included offenses, but said “we discussed every aspect of

2
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2018AP1771-CR

going to trial in this particular case, which included lesser-includeds [and] the
possibility of going to trial.” Taylor also testified that Washington “adamantly
wanted to … have a plea in this matter. We talked about the trial in some detail….
But Mr. Washington admitted his guilt right away from the beginning. His whole
focus was on trying to explain why he did what he did.” Taylor said that he
“probably” discussed the possibility of going to trial and requesting an instruction
for the lesser-included offense of second-degree reckless homicide, but that
Washington was insistent about accepting responsibility for his actions. Taylor
also stated that he was unsure if he had notes about his conversations with
Washington about lesser-included offenses, but that he spoke with Washington
nineteen times at the county jail. Taylor also testified that he stressed the
accidental nature of the shooting at sentencing.

¶7 W.W. testified that he threw a basketball at Washington before the
shooting. He testified that he heard the gun shots immediately and his brother
stating that he had been shot. W.W. stated that his brother tackled his father and
screamed, “[c]all 911.” W.W. said that he was never interviewed by a defense
investigator to discuss his father’s case.

¶8 Washington testified that Taylor never reviewed the plea
questionnaire form with him, that he signed the document because Taylor told him
to, and that he was unaware of the rights he was giving up by pleading guilty.
Washington also stated that he told Taylor that the gun went off accidentally after
W.W. threw a basketball, hitting Robert and causing Robert to fall onto
Washington, but that Taylor nonetheless advised Washington to plead guilty to the
offenses as charged. Washington stated that Taylor never discussed lesser-
included offenses, nor did Taylor explain to Washington the possibility of
requesting a lesser-included instruction had the matter gone to trial.

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No. 2018AP1771-CR

¶9 The circuit court asked Taylor to look through his files for
information about Washington’s allegations. Taylor wrote a letter to the circuit
court in response to the court’s “request[] to provide any available written
additional information … regarding specific notes on the subject of discussing …
lessor [sic] included Wisconsin Jury Instructions … with the defendant Mr. Robert
C[.] Washington.” The letter stated that Taylor did not have “any specific notes
regarding this subject,” but stated that Taylor met with Washington nineteen times
and “exhaustively discussed every aspect of a possible jury trial as well as all
sentencing possibilities and court proceedings.” The letter also stated that Taylor
asked the State about the possibility of charging Washington with lesser charges,
but that the State rejected the possibilities. The letter further stated that
Washington was adamant about accepting responsibility for his actions.

¶10 The circuit court denied Washington’s postconviction motion. The
court found that Taylor provided effective assistance by discussing all aspects of a
possible jury trial, including lesser-included offenses; that Taylor met with
Washington numerous times to discuss the case; that Washington did not want to
go to trial; that Washington’s testimony was not credible; and that Taylor’s
testimony was credible. The court also rejected Washington’s argument that
W.W.’s testimony constituted newly discovered evidence. Finally, the court stated
that it considered all of the material facts of the case when rendering its sentencing
decision and that a more “supportive” argument from Taylor would not have
influenced its sentencing decision. This appeal follows.

DISCUSSION

¶11 On appeal, Washington contends that: (1) trial counsel was
ineffective for failing to advise Washington about the possibility of requesting

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No. 2018AP1771-CR

instructions at trial for lesser-included offenses; (2) newly discovered evidence in
the form of W.W.’s acknowledgment that he threw a basketball at Washington
warrants plea withdrawal; and (3) alternatively, resentencing is warranted because
counsel was ineffective at the sentencing hearing. We address each issue.

Ineffective Assistance of Counsel

¶12 A defendant who seeks to withdraw a plea after sentencing carries
the heavy burden of establishing by clear and convincing evidence that the circuit
court should permit withdrawal of the plea to correct a “manifest injustice.”
State v. Krieger, 163 Wis. 2d 241, 249, 471 N.W.2d 599 (Ct. App. 1991) (citation
omitted). The manifest injustice test is met if the defendant was denied the
effective assistance of counsel. State v. Bentley, 201 Wis. 2d 303, 311, 548
N.W.2d 50 (1996).

¶13 To establish ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that he or she was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S.
668, 687 (1984). A reviewing court may dispose of a claim of ineffective
assistance of counsel on either ground. Id. at 697. Consequently, if counsel’s
performance was not deficient, the claim fails and this court’s inquiry is done.

¶14 We review the denial of an ineffective assistance claim as a mixed
question of fact and law. See id. at 698. We will not reverse the circuit court’s
factual findings unless they are clearly erroneous. See State v. Johnson, 153
Wis. 2d 121, 127, 449 N.W.2d 845 (1990). However, we review the two-pronged
determination of trial counsel’s effectiveness independently as a question of law.
See id. at 128.

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No. 2018AP1771-CR

¶15 Washington contends that trial counsel was ineffective because
counsel failed to discuss the possibility of going to trial and requesting a jury
instruction on lesser-included offenses. Washington also contends that counsel
essentially admitted this failure in his letter to the court, in which counsel stated
that he did not have any specific notes about discussions on lesser-included
offenses. We disagree.

¶16 Taylor testified at the Machner hearing that he discussed each and
every aspect of Washington’s case with him over the course of nineteen meetings,
including lesser-included offenses and the possibility of going to trial. Taylor
stated that Washington did not want to go trial and wanted to accept responsibility
for the shootings. Although Taylor’s letter to the court indicated that he did not
have records of specific conversations regarding the issues Washington
complained about, Taylor was certain that he provided Washington with all of the
information necessary to make an informed decision about his pleas. The circuit
court found Taylor’s testimony credible and Washington’s testimony not credible.
When the circuit court makes a credibility determination, “it is the ultimate arbiter
of the credibility of the witnesses and the weight to be given to each witness’s
testimony.” State v. Peppertree Resort Villas, Inc., 2002 WI App 207, ¶19, 257
Wis. 2d 421, 651 N.W.2d 345. The court’s determinations of a witness’s
credibility will not be set aside unless they are clearly erroneous. WIS. STAT.
§ 805.17(2) (2017-18);3 Jacobson v. American Tool Cos., Inc., 222 Wis. 2d 384,
389-90, 588 N.W.2d 67 (Ct. App. 1998). A determination by the circuit court is
clearly erroneous only if we conclude “as a matter of law, that no finder of fact

3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1771-CR

could believe the testimony.” See Teubel v. Prime Dev., Inc., 2002 WI App 26,
¶13, 249 Wis. 2d 743, 641 N.W.2d 461. Because the record supports the court’s
determinations as to witness credibility, its findings are not clearly erroneous.
Accordingly, the court properly concluded that Taylor did not render ineffective
assistance.

Newly Discovered Evidence

¶17 Washington contends that at the time of his plea hearing, he “did not
know that W.W. acknowledged throwing the basketball.” Specifically, he argues
that counsel did not tell Washington “about this fact,” and that “neither Mr. Taylor
nor any trial-level defense investigator ever interviewed W.W. to find this out.”
Washington contends that W.W.’s statement corroborates the version of events
Washington had been asserting since his arrest—that W.W. threw a basketball in
his direction, causing Robert to fall onto him and accidentally set off the gun.

¶18 For a defendant to obtain plea withdrawal based on newly
discovered evidence, he or she “must establish 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.’” State v. Edmunds, 2008 WI App
33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590 (citation omitted). After a defendant
proves these four criteria, we “should consider whether a jury would find that the
newly[ ]discovered evidence had a sufficient impact on other evidence presented
at trial that a jury would have a reasonable doubt as to the defendant’s guilt. This
latter determination is a question of law.” See State v. Plude, 2008 WI 58, ¶¶32-
33, 310 Wis. 2d 28, 750 N.W.2d 42 (internal citation omitted).

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No. 2018AP1771-CR

¶19 However, W.W.’s statement about throwing the basketball was not
newly discovered evidence. W.W. was present at the time of the shooting incident
and gave a statement to police. Whether or not W.W. threw a basketball at his
father was known to W.W. and Washington at the time of the incident. Moreover,
Washington consistently maintained that W.W. threw a basketball in his direction,
ultimately causing the gun to discharge. W.W.’s ultimate corroboration of
Washington’s defense is not newly discovered evidence—it is simply a different
version of events.

Resentencing

¶20 As an alternative to plea withdrawal, Washington contends that he is
entitled to resentencing on the basis of ineffective assistance of trial counsel. We
disagree. As stated, to establish an ineffective assistance of counsel claim, a
defendant must show both that counsel’s performance was deficient and that he or
she was prejudiced by the deficient performance. Strickland, 466 U.S. at 687. If
we conclude that the defendant has failed to prove one prong, we need not address
the other prong. See id. at 697.

¶21 At sentencing, Taylor stated:

This is a very, very, very tragic incident. And Mr.
Washington is responsible for that. There’s no two ways
about it. I don’t care what the hell he says why he did it.
It’s totally unacceptable.

….

I submit to the Court that Mr. Washington is a
threat to no one but himself in this particular case and he’s
going to be removed shortly. But I think for a just
sentence, there’s a message that needs to be sent.… [I]t’s
about the people who’s handling the guns in this case.

….

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No. 2018AP1771-CR

With respect to a sentencing recommendation,
Judge, I think the PSI writer tried to document it as best she
could with respect to the factors that the Court must use
that would help the Court consider.

Like the [State], I’m going to punt.

¶22 Assuming, without deciding, that trial counsel’s comments at
sentencing constituted deficient performance, we conclude that Washington was
not prejudiced by the deficiency. To demonstrate prejudice, Washington must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. See id. at 694. A
reasonable probability is one sufficient to undermine confidence in the outcome.
Id. Washington has not met this burden.

¶23 Postconviction, the circuit court found that even if counsel had been
more “supportive,” “there is not a reasonable probability that the court would have
imposed anything other than the sentences it did impose.” The court stated that it
considered the facts of the case, the PSI, Washington’s statement at sentencing,
and Washington’s wife’s statement at sentencing. The court noted that it “did not
have to accept [Washington’s] ‘gun just went off’ version for purposes of
sentencing.” Therefore, counsel did not render ineffective assistance because even
if he had advocated more strongly for Washington, the sentence would have
remained the same. See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113
(Ct. App. 1994) (Counsel is not ineffective for failing to make meritless
arguments.).

¶24 For the foregoing reasons, we affirm the circuit court.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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