State v. Lucious Emmit Mason

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.
December 27, 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. 2018AP2136-CR Cir. Ct. No. 2016CF3530

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

LUCIOUS EMMIT MASON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: PEDRO COLON, Judge. Affirmed.

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

¶1 PER CURIAM. Lucious Emmit Mason appeals from a judgment of
conviction for one count of armed robbery with use of force, one count of false
No. 2018AP2136-CR

imprisonment while using a dangerous weapon, and one count of substantial
battery while using a dangerous weapon. See WIS. STAT. §§ 943.32(2),
939.63(1)(b), 940.30, and 940.19(2) (2015-16).1 Mason also appeals from an
order denying his motion for postconviction relief. Mason argues that he is
entitled to a new trial because trial counsel provided ineffective assistance in four
ways. We reject his arguments and affirm the judgment and order.

BACKGROUND

¶2 The criminal charges in this case were the result of an incident
involving Mason and S.H., who were friends and previously had a sexual
relationship. The criminal complaint alleged that S.H. and her male friend, A.W.,
arranged to meet at a gas station and walk to a nearby bar. While S.H. and A.W.
were at the gas station, Mason drove up to them, exited his vehicle, and attacked
them with a tire iron.2 Mason struck A.W. and took A.W.’s phone after it fell on
the ground, which was the basis for the armed robbery charge.

¶3 The complaint alleges that S.H. told the police that, during the
attack, she “ran to a bar named Miss Kitties to try and get help, but returned to the
parking lot, as she was afraid [Mason] would kill [A.W.].” When she returned,
Mason told her to get into his vehicle. S.H. did so, leaving A.W. behind.

¶4 The criminal complaint further alleged that Mason drove S.H. to
another location. Mason “drag[ged] her from the vehicle” and began to hit her

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Various witnesses described the instrument as a tire iron or crowbar. In this decision,
we will refer to it as a tire iron.

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No. 2018AP2136-CR

with the tire iron. Concerned citizens, including a man named O.B., approached
Mason while he was hitting S.H. Mason fled in his vehicle, and the citizens
contacted the police. S.H. was transported to the hospital, where she was treated
for serious injuries. Mason was charged with false imprisonment and substantial
battery for his actions toward S.H.

¶5 After Mason was arrested in November 2016, he remained in jail
until he was released on bail on March 8, 2017. The jury trial began on May 30,
2017. Before the jury was selected, the State put on the record the plea offer that
had been extended to Mason. The State said:

Your Honor, there was an offer of resolution that
was sent on February 28th of 2017, that the State would
move to dismiss and read in the Armed Robbery and Use of
Force and False Imprisonment While Armed [u]pon a
[plea] to the Substantial Battery while Armed which is
Count 3.

The State [would be] recommending 18 months [of]
initial confinement and 24 months [of] extended
supervision and the other standard conditions including
restitution. That was rejected and this matter was set for
trial. I just wanted to put that on the record today after
talking with the victims and also going through with the
officers what the relative strengths and weaknesses were of
the State’s case.

I did indicate to counsel that based on the defendant
not picking up any charges while this matter has proceeded,
he has not tried to make contact with the victims, nor harass
them in any way[,] based upon all of those factors and the
age of his prior record, his last conviction was in 2002, I
indicated that … on Count 3 the State would recommend
the time be imposed and stayed and that he be placed on
probation.

That the State would be affirmatively asking for
condition time based upon the nature of the victim’s
injuries, she had two broken bones. With the Defense free
to argue as a matter of resolving this with the surety of a
conviction and with the victims not having to go through
the stressors of having to go to trial. They are both present

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No. 2018AP2136-CR

today. And counsel indicated to me that his client was
rejecting that offer.

I just wanted to make sure it’s on the record so that
Mr. Mason understands for certain that if he goes to trial
he’s going to trial on a 40-year felony[,] Armed Robbery
Use of Force[, with a] maximum penalty of 40 years[;]
False Imprisonment While Armed which has a maximum
penalty of 11 years because of the enhancer[;] and the
Substantial Battery While Armed which has a maximum
penalty of 7 and a half years. And that those can be run
consecutively to each other if he is convicted of all three
charges just so that it’s clear to him.

¶6 The trial court asked the State to repeat the current offer. The State
reiterated that it would recommend that the trial court impose a sentence of
eighteen months of initial confinement and twenty-four months of extended
supervision, stay the sentence, put Mason on probation, and order jail time as a
condition of probation.

¶7 The trial court then turned to trial counsel, who said: “That is
correct. And I think my client is arguing for his five months already for initial
confinement. He’s previously been in custody for five months on this matter.”
Subsequently, the parties and the trial court spoke off the record, after which trial
counsel indicated that Mason wanted new counsel. The trial court denied the
request, and there was no additional discussion about the plea offer.

¶8 After lunch, the parties returned to the courtroom. The State noted
that a citizen witness it had hoped to call, O.B., had been located. The State said:

The witness, [O.B.], that was not available this morning has
been located now and is on call…. So I just wanted the
defendant to be aware of that as well. That there was an
additional witness that was already on our witness list and
we had not located him as of this morning. We do now
have him located as of this afternoon. And if that changes
the weighing of the State’s offer that was placed on the
record this morning the State would still keep that open if
that would resolve matters.

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No. 2018AP2136-CR

The trial court gave the parties an opportunity to speak privately. When the case
was recalled, there was no indication that Mason was interested in accepting the
plea. Instead, the trial court and the parties discussed Mason’s request for new
counsel, which the trial court again denied.

¶9 At trial, S.H., A.W., and O.B. each testified that Mason was the man
who attacked S.H. Mason did not testify.

¶10 In his closing argument, trial counsel argued that S.H.’s memory was
faulty and that A.W.’s identification of Mason was flawed. Trial counsel
acknowledged that S.H. was beaten, but he said that “doesn’t mean that
Mr. Mason is the individual” who beat her.

¶11 As part of his argument that S.H.’s memory was unreliable, trial
counsel referenced the fact that S.H. testified that she sought assistance at the bar
she and A.W. had planned to visit—the Wilson Club—but originally told
investigators she sought help at a bar called Miss Kitties.3 Trial counsel said:

We have a woman who everyone says is delirious, is in and
out of consciousness, is unsure even [two days after the
incident]. She gives two different locations, first
Mr. Wilson’s and then a Ms. Kitty’s. I don’t know where
Miss Kitties is, okay?

That’s relevant to deciding his guilt, okay?

¶12 In response to trial counsel’s argument about S.H.’s reference to
different bars, the State argued:

Now, if the biggest hole we can poke in this is that
at the time [S.H.] said it was Ms. Kitty’s Bar and now she’s
3
The transcripts reflect several variations of the names of the two bars, including Wilson
Club, Mr. Wilson’s, Miss Kitties, and Ms. Kitty’s.

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No. 2018AP2136-CR

saying it’s Wilson’s Bar, that’s not an element of the crime.
I don’t know if the bar name has changed. I don’t know if
there’s two bars next to each other. I’m not familiar with
either, and that’s not an element of the crime.

There’s no dispute that she ran across [the street] to
a bar trying to get help. [A.W.] says it and she says it.

¶13 The jury found Mason guilty of all charges. Prior to sentencing, trial
counsel moved to withdraw, and the trial court granted the motion. Represented
by new trial counsel, Mason was sentenced to a total of eleven and one-half years
of initial confinement and seven years of extended supervision.

¶14 Represented by postconviction counsel, Mason filed a motion for
postconviction relief. The motion alleged that Mason’s first trial counsel, who
represented him from the preliminary hearing through the trial, provided
ineffective assistance by failing to: “(1) communicate effectively with Mr. Mason
regarding the most basic issues of the case, including the State’s plea offer;
(2) cross-examine the complaining witnesses regarding inconsistencies about
where the alleged criminal conduct occurred; and (3) adequately investigate the
witnesses that testified against Mr. Mason.”

¶15 After receiving a response from the State and a reply from Mason,
the trial court denied Mason’s postconviction motion without a hearing except for
one issue. The trial court scheduled a Machner hearing for “the issue pertaining
to trial counsel’s communication with [Mason] concerning the plea offer made by
the State prior to trial and the offer made in court on the first day of trial.” See
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

¶16 At the Machner hearing, trial counsel testified that on the first day
of the trial, after the State stated the plea offer on the record, trial counsel
discussed the offer with Mason over the lunch break. Trial counsel testified:

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No. 2018AP2136-CR

One of his friends was there and he asked him, why didn’t
he want to take the deal. So it was discussed and he had
two hours to think about that. And at one point we’re in the
hall and he’s by the window ledges and again he’s
slamming his fist on the ledge screaming at me saying, I
don’t want no f-nn deal. Don’t come back to me with no
f-nn deal.

¶17 In contrast, Mason testified that he “[n]ever discussed any plea with”
trial counsel. Mason said that he “remember[s] an offer was said” on the record
on the first day of the trial, but he said that he “wasn’t paying attention” because
he was arguing with trial counsel. Mason claimed he “didn’t understand what the
plea was due to the conflict.” When asked whether he would have accepted the
plea deal if he had heard about it, Mason answered: “Maybe so probably so, yes.”

¶18 At the conclusion of the hearing, the trial court denied the remainder
of Mason’s postconviction motion, finding that trial counsel had not performed
deficiently. The trial court accepted trial counsel’s testimony that he discussed
with Mason “the strength of the case” and “went over the testimony that we
ultimately heard.” The trial court also noted that the State reviewed the plea offer
on the record twice. The trial court found that Mason “understood what the offer”
was and “knowingly” rejected it. This appeal follows.

DISCUSSION

¶19 On appeal, Mason continues to argue that trial counsel provided
ineffective assistance in numerous ways. We address each argument in turn. For
reasons detailed below, we conclude that Mason is not entitled to relief.

¶20 We begin our analysis with the relevant legal standards. To
establish ineffective assistance, a defendant must show both that counsel’s
performance was deficient and that he or she was prejudiced by the deficient

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No. 2018AP2136-CR

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). If we
conclude that a defendant has failed to demonstrate one of the prongs, we need not
address the other. See id. at 697. “To prove constitutional deficiency, the
defendant must establish that counsel’s conduct falls below an objective standard
of reasonableness.” State v. Love, 2005 WI 116, ¶30, 284 Wis. 2d 111, 700
N.W.2d 62. “To prove constitutional prejudice, the defendant must show that
there is 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. (citations and
internal quotation marks omitted).

¶21 A claim of ineffective assistance of counsel presents a mixed
question of law and fact. State v. Carter, 2010 WI 40, ¶19, 324 Wis. 2d 640, 782
N.W.2d 695. We will uphold the trial court’s findings of fact unless they are
clearly erroneous, but “the ultimate determination of whether counsel’s assistance
was ineffective is a question of law, which we review de novo.” See id. (italics
added). In addition, we will not disturb the postconviction court’s credibility
determinations. See State v. Turner, 114 Wis. 2d 544, 550, 339 N.W.2d 134 (Ct.
App. 1983) (recognizing that the appellate court defers to the trial court’s
determinations of witness credibility).

¶22 A defendant is not automatically entitled to an evidentiary hearing
on his or her postconviction motion. See State v. Bentley, 201 Wis. 2d 303, 310,
548 N.W.2d 50 (1996). The trial court must hold an evidentiary hearing only if
the defendant alleges “sufficient material facts that, if true, would entitle the
defendant to relief,” which is a question of law that we review de novo. See State
v. Allen, 2004 WI 106, ¶¶9, 14, 274 Wis. 2d 568, 682 N.W.2d 433. To entitle the
defendant to a hearing, the motion must “allege the five ‘w’s’ and one ‘h’; that is,

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No. 2018AP2136-CR

who, what, where, when, why, and how” as to the defendant’s claims. Id., ¶23. If
the motion does not set forth sufficient facts or presents only conclusory
allegations, “or if the record conclusively demonstrates that the defendant is not
entitled to relief,” the trial court may grant or deny a hearing at its discretion. Id.,
¶9.

¶23 We turn to the two arguments that the trial court denied without a
hearing. First, the postconviction motion asserted that trial counsel performed
deficiently by failing to cross-examine S.H. and A.W. about where the crimes
occurred. Mason noted that S.H. testified that during the assault she ran to a bar
called “Wilson’s Club,” which Mason alleged is located about one-half mile from
the gas station. Mason argued: “It is … highly unlikely that [S.H.] ran nearly a
mile to Wilson’s Club and back again, while [A.W.] remained at the gas station.”
Mason asserted that trial counsel’s performance was deficient because “[i]n a case
w[h]ere the complaining witnesses’ credibility, and their ability to accurately
perceive and recount events, especially as it bore on their identification of
Mr. Mason, was of such importance, it was incumbent on counsel to point out
inconsistencies in their accounts.” Mason concluded: “The evidence … would
have highlighted a material discrepancy between the witnesses’ accounts of where
they were, and what they did, with the actual physical distances involved.”

¶24 The trial court concluded that Mason was not entitled to a hearing
because he had not demonstrated prejudice. See Strickland, 466 U.S. at 697. The
trial court noted that S.H. had memory problems that were explored at the jury
trial, and that the State had relied on testimony not just from S.H., but also from
A.W. and O.B. to identify Mason as the perpetrator. The trial court concluded:
“Cross[-]examination of such inconsistencies under the above circumstances
would not have made a singular difference in [the] outcome of the trial.”

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No. 2018AP2136-CR

¶25 We agree with the trial court. Mason’s motion did not demonstrate
that he was prejudiced by the lack of additional cross-examination about the
location where the first assault took place. Mason’s defense at trial was not to
deny that S.H. and A.W. were attacked, but to assert that he was not the
perpetrator. Trial counsel attempted to discredit S.H.’s identification of Mason by
pointing out her confusion and the fact that she had not consistently identified the
bar where she sought assistance. The jury, nonetheless, found Mason guilty. We
are not persuaded by Mason’s suggestion that if the jury had heard additional
testimony about the distance between certain bars and the gas station, “there is a
reasonable probability that … the result of the proceeding would have been
different.” See Love, 284 Wis. 2d 111, ¶30 (citations and internal quotation marks
omitted). In summary, we agree with the trial court that Mason was not entitled to
an evidentiary hearing on this issue. The record “conclusively demonstrate[d]”
that Mason “[was] not entitled to relief.” See Allen, 274 Wis. 2d 568, ¶9.

¶26 The second allegation of deficient performance that the trial court
denied without a hearing was that trial counsel failed to adequately investigate
S.H., A.W., and O.B. The postconviction motion said there was “no indication
that [trial] counsel attempted to interview” those witnesses prior to trial. Mason
alleged that trial counsel should have reviewed S.H.’s medical history and had an
investigator interview her “in order to independently assess her credibility and
ability to accurately recall information.” Mason offered no explanation of what
might have been revealed if trial counsel had investigated A.W. and O.B.

¶27 The trial court rejected this argument, without a hearing, on grounds
that Mason’s allegations were “conclusory.” We agree with the trial court.
Mason’s suggestion that S.H.’s medical records would reveal information that
would have affected the jury’s analysis was conclusory. He also did not address

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No. 2018AP2136-CR

the fact that the jury already heard testimony from S.H. that she did not remember
everything that occurred during the assaults. Further, Mason did not explain what
additional information he believes would have been discovered by interviewing
A.W. and O.B. We conclude that Mason’s arguments were conclusory; he failed
to adequately allege both deficiency and prejudice. Therefore, he was not entitled
to an evidentiary hearing. See id.

¶28 Next, we consider the two interrelated communication issues that
were addressed at the Machner hearing: trial counsel’s alleged failure to
communicate with Mason about the plea offer and his alleged failure to
communicate with Mason in general. The trial court heard testimony about the
plea offer, trial counsel’s interactions with Mason during the trial, and Mason’s
attempts to contact trial counsel in the months leading up to the trial.4 However,
the parties’ closing arguments focused primarily on the plea offer. Thus, the trial
court made specific findings about the plea offer, but not about general
communication between Mason and trial counsel.

¶29 On appeal, Mason separates his argument about trial counsel’s
communications concerning the plea agreement from his argument that trial
counsel failed to effectively communicate “at critical stages of the proceedings,”
which we interpret to be a challenge to trial counsel’s general communication with
Mason. (Bolding and some capitalization omitted.) Accordingly, we will address
them separately.

4
Trial counsel testified that when Mason was released on bail, trial counsel told Mason
to give him a call when he got a phone. Trial counsel testified: “I gave him my information. He
never got back to me until the day of trial.” Mason testified that he telephoned trial counsel two
or three times but did not reach him. Mason acknowledged that he did not leave a voicemail for
trial counsel, explaining: “I didn’t leave a voicemail because I wanted to talk to him in person.”

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No. 2018AP2136-CR

¶30 We defer to the trial court’s credibility determinations and findings
of fact concerning trial counsel’s communication about the plea agreement. See
Carter, 324 Wis. 2d 640, ¶19; Turner, 114 Wis. 2d at 550. Based on those
determinations, which are not clearly erroneous, trial counsel did not perform
deficiently. Trial counsel communicated the plea offer to Mason and he rejected
it. Therefore, Mason was not entitled to relief based on those allegations. See
Strickland, 466 U.S. at 687.

¶31 Finally, we consider Mason’s allegation that trial counsel did not
effectively communicate in general. Mason complains that trial counsel did not
meet with him more often, send him correspondence, or provide him with a copy
of the discovery. He also notes that, at one point during the trial, the trial court
observed that communication between Mason and trial counsel was “tense.”
Mason argues that these facts demonstrate that trial counsel performed deficiently.

¶32 While Mason has addressed why he believes trial counsel’s general
communication with him was deficient, his opening brief does not address
prejudice, which the State points out in its response. Mason finally addresses
prejudice in his reply brief, arguing: “[T]he failure to communicate in general was
so fundamental as to prejudice him throughout the proceedings…. [It] amounted
to a constructive denial of counsel, and … prejudice should be presumed.” See
Strickland, 466 U.S. at 692 (“Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result in prejudice.”).

¶33 Mason’s assertion that prejudice from trial counsel’s general
communication failures can be legally presumed is an argument raised for the first
time on appeal. On that basis alone we can reject it. See State v. Schulpius, 2006

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No. 2018AP2136-CR

WI 1, ¶26, 287 Wis. 2d 44, 707 N.W.2d 495 (holding that the court of appeals
generally will not review an issue raised for the first time on appeal).

¶34 Mason’s argument also fails because he has not adequately
demonstrated that trial counsel’s alleged deficiencies—such as failing to meet
more often with Mason and get along with him better—are the types of
deficiencies for which prejudice can be presumed under Strickland. See State v.
Erickson, 227 Wis. 2d 758, 770, 596 N.W.2d 749 (1999) (“To be sure, there are
instances where a court will presume prejudice; those instances, however, are
rare.”). Mason’s belated argument is conclusory and unpersuasive, and we will
not develop an argument for him. See Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82
(stating that this court will not abandon its neutrality to develop arguments for a
litigant); Vesely v. Security First Nat’l Bank of Sheboygan Trust Dep’t, 128
Wis. 2d 246, 255 n.5, 381 N.W.2d 593 (Ct. App. 1985) (stating that we do not
decide inadequately briefed arguments).

¶35 We conclude that Mason has not demonstrated prejudice with
respect to his general communication claim. Therefore, we need not discuss the
reasons he believes trial counsel’s communication with him during “critical
stages” was deficient. See Strickland, 466 U.S. at 697. Mason is not entitled to
relief.

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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