State v. Thomas F. Ball, 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.
April 15, 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 Nos. 2018AP2184-CR Cir. Ct. No. 2000CF358
2000CF367
2018AP2185-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

THOMAS F. BALL, II,

DEFENDANT-APPELLANT.

APPEALS from judgments and orders of the circuit court for
Washington County: JAMES K. MUEHLBAUER, Judge. Affirmed.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

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).
Nos. 2018AP2184-CR
2018AP2185-CR

¶1 PER CURIAM. In these consolidated cases, Thomas F. Ball, II,
appeals from judgments convicting him of nine crimes and from the orders
denying his postconviction motions.1 Ball contends defense counsel performed
ineffectively at resentencing by failing to challenge the structure of his sentences
and his sentence credit and failing to request a restitution hearing. He also
contends a new factor merits sentence modification. His arguments are
unpersuasive; we affirm.

I. Background

A. Case No. 00CF358

¶2 Ball, a heroin addict and convicted felon, robbed a bank while
masked and wielding a stolen gun. He and his accomplice then led police on a
thirty-eight-mile high-speed chase. An officer was injured in an attempt to
apprehend Ball. Ball ultimately pled no contest to being party to a crime of armed
robbery with threat of force (“bank robbery”), first-degree reckless endangerment,
and endangering safety by reckless use of a firearm. The bank robbery carried a
concealing-identity penalty enhancer; all counts carried a repeater enhancer.

B. Case No. 00CF367

¶3 Two days later, Ball, in custody and suffering heroin withdrawal,
was transported in ankle shackles to a hospital for medical treatment. There, he
stabbed Washington County Detective Marie Joers with his IV needle and

1
The Honorable Annette K. Ziegler presided over the proceedings through Ball’s initial
sentencing. The Honorable James K. Muehlbauer presided over Ball’s resentencing and
postconviction hearings.

2
Nos. 2018AP2184-CR
2018AP2185-CR

demanded her service revolver. She refused to give it up, so he choked her to
unconsciousness and seized it. When Joers came to, Ball pointed the gun at her
and demanded her keys so he could remove his shackles. She refused.

¶4 Joers and a nurse tried to wrest the gun from Ball. Ball overpowered
them, losing his hospital gown in the struggle. He again pointed the gun at Joers.
When she still refused to give him her keys, Ball pulled the trigger twice but the
gun did not fire. Ball chambered a round and shot off one of his shackles. Naked
and bleeding, he fled on foot, firing more shots as he ran.

¶5 Ball then carjacked a Cadillac from a seventy-seven-year-old woman
and led police on another high-speed chase through two counties, a portion of it
through downtown Cedarburg, where an annual town festival was underway.
Vehicles there were forced to take evasive action—he still struck one of them—
and pedestrians had to dive out of the way. He eventually lost control of the car,
which went airborne and crashed near a nursing home. Ball entered the facility,
then fled into a field where, now clutching a blanket about himself, he was shot
and apprehended.

¶6 Ball was charged with attempted first-degree intentional homicide in
regard to Joers; disarming a peace officer; first-degree recklessly endangering
safety by use of a dangerous weapon; battery of a peace officer; escape from
criminal arrest; armed car-jacking; and felon in possession of a firearm. All of the
charges carried a repeater enhancer.

C. Disposition

¶7 In July 2001, a jury convicted Ball on all but the homicide charge.
A month later, he entered no-contest pleas in case No. 00CF358. In October 2001,

3
Nos. 2018AP2184-CR
2018AP2185-CR

the circuit court sentenced Ball in the two cases to forty years’ initial confinement
(IC) followed by forty-five years’ extended supervision (ES).2 The court also
ordered $24,998.32 in restitution.

D. Resentencing

¶8 In 2016, the Department of Corrections (DOC) asked the circuit
court to review the ES portion of some of the sentences in both cases. When a
penalty enhancer increases the total length of a sentence, the maximum period of
IC is increased by that amount. WIS. STAT. § 973.01(2)(c)1. (2017-18).3 The
DOC noted that here it appeared the enhanced time was applied either instead of
or in addition to ES on some counts.

¶9 In April 2017, the court held a resentencing hearing. It vacated all of
the earlier sentences and reduced Ball’s global sentence to thirty-eight years’ IC
and thirty-nine years’ ES. The State requested the $24,998.32 restitution as
originally ordered. Ball’s attorney responded that he could not agree, as he
“ha[d]n’t seen any support for it.” The court said it would order the $24,998.32,
but told Ball’s attorney he could request a restitution hearing within thirty days.

¶10 The court then discussed Ball’s credit for time served, which all
agreed was 5409 days, nearly fifteen years. The parties agreed that the court could
allocate the days in the order in which sentencing occurred. Saying Ball was “not

2
Ball was sentenced on October 5, 2001, but did not begin serving that sentence until
June 29, 2002, when he completed his revocation sentence.
3
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

4
Nos. 2018AP2184-CR
2018AP2185-CR

going to have to do the 15 years he already did,” the court applied the credit to
count one of case No. 00CF358, the bank robbery, for which Ball was resentenced
to twenty years’ IC and twenty years’ ES.

E. Postconviction

¶11 Ball moved for postconviction relief, arguing that defense counsel
was ineffective at the resentencing hearing. He asserted that the sentence structure
increased the term of some individual sentences he already had “completed,” yet
counsel failed: to argue that double jeopardy and finality-of-the-sentence
principles made resentencing on those counts illegal; to argue that the 5409 days’
sentence credit should have been credited against each of his eight concurrent
sentences;4 and to request a restitution hearing.

¶12 The court denied Ball’s motion without a Machner5 hearing,
reasoning that, as each of Ball’s original nine felony sentences included a term of
extended supervision, he could not have “completed” any of them. The court also
denied Ball’s request for a restitution hearing because he had not asked for one
when he had the opportunity to do so.

¶13 Ball appealed, then voluntarily dismissed it so as to file a
supplemental postconviction motion. In it, he argued that postresentencing
correspondence from the DOC constituted a “new factor” warranting sentence

4
Of Ball’s nine sentences, only the escape count in case No. 00CF367 was ordered to be
served consecutively, which was mandatory at the time of his original sentencing. See WIS.
STAT. § 946.42(4)(a) (1999-2000).
5
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

5
Nos. 2018AP2184-CR
2018AP2185-CR

modification. He claimed it showed that several of his sentences were legally
“completed,” such that the court was prohibited from resentencing him on them.

¶14 The postconviction court also denied that motion. It observed that
Ball once more relied on the mistaken, and already-rejected, premise of his prior
argument: that several of his original sentences had been “completed” by the time
of his resentencing hearing. The court reiterated that Ball has not completed any
sentence, as he has not yet begun to serve the ES portion of any of them. The
court also noted that the DOC correspondence dealt with the resentence imposed
and the sentence credit granted, matters the court found “hardly ‘new,’” as it had
taken them into account in structuring the resentence. The court also determined
that “neither the resentence nor the sentence credit granted to Ball could possibly
frustrate the purpose of the resentence. They were the resentence.”6 This appeal
followed.

II. Appeal

A. Ineffective Assistance of Counsel

¶15 Under both the Wisconsin and United States Constitutions, for a
court to find that counsel rendered ineffective assistance, a defendant must show
both that counsel’s performance was deficient and that, as a result of that deficient
performance, the defendant was prejudiced. Strickland v. Washington, 466 U.S.
668, 687 (1984); State v. Thiel, 2003 WI 111, ¶18, 264 Wis. 2d 571, 665 N.W.2d

6
“In determining whether to exercise its discretion to modify a sentence on the basis of a
new factor, the circuit court may, but is not required to, consider whether the new factor frustrates
the purpose of the original sentence.” State v. Ninham, 2011 WI 33, ¶89, 333 Wis. 2d 335, 797
N.W.2d 451.

6
Nos. 2018AP2184-CR
2018AP2185-CR

305. Counsel’s performance is “constitutionally deficient if it falls below an
objective standard of reasonableness.” Thiel, 264 Wis. 2d 571, ¶19. Deficient
performance is constitutionally prejudicial if “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., ¶20 (citation omitted). A claim of
ineffective assistance of counsel is a mixed question of law and fact. Id., ¶21.
The circuit court’s findings of fact will be upheld unless they are clearly
erroneous, but whether counsel’s performance satisfies the constitutional standard
for ineffective assistance of counsel is a question of law, which we review de
novo. Id.

¶16 “A Machner hearing is a prerequisite for consideration of an
ineffective assistance claim.” State v. Sholar, 2018 WI 53, ¶50, 381 Wis. 2d 560,
912 N.W.2d 89. “A defendant is entitled to a Machner hearing only when his [or
her] motion alleges sufficient facts, which if true, would entitle him [or her] to
relief.” Sholar, 381 Wis. 2d 560, ¶50. “If a defendant’s motion asserting
ineffective assistance ‘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, the circuit court has the discretion to
grant or deny a hearing.’” Id. (citation omitted).

1. Double Jeopardy/Finality of Sentence

¶17 Ball contends defense counsel should have objected to the
sentencing structure. He reasons that, by the time of the April 2017 resentencing,
he had completed several of his sentences and thus held a legitimate expectation of

7
Nos. 2018AP2184-CR
2018AP2185-CR

finality in regard to all of his sentences, such that resentencing him on the
“completed” sentences violated double jeopardy.

¶18 Because the double jeopardy clauses of the Wisconsin and United
States Constitutions are coextensive, we may treat them as one in our analysis.
State v. Burt, 2000 WI App 126, ¶7, 237 Wis. 2d 610, 614 N.W.2d 42. Whether a
defendant’s double jeopardy protections have been violated is a question of law
we review de novo. Id. “[T]he analytical touchstone for double jeopardy is the
defendant’s legitimate expectation of finality in the sentence ….” State v. Jones,
2002 WI App 208, ¶10, 257 Wis. 2d 163, 650 N.W.2d 844. That expectation may
be influenced by many factors, such as completion of the sentence, the passage of
time, the pendency of an appeal, or the defendant’s misconduct in obtaining
sentence. Id.

¶19 The court focused on completion of the sentence and the passage of
time, finding that neither worked in Ball’s favor. Under WIS. STAT.
§ 973.15(2m)(b),

1. If a court provides that a determinate sentence is to
run concurrent with another determinate sentence, the
person sentenced shall serve the periods of confinement in
prison under the sentences concurrently and the terms of
extended supervision under the sentences concurrently.

2. If a court provides that a determinate sentence is to
run consecutive to another determinate sentence, the person
sentenced shall serve the periods of confinement in prison
under the sentences consecutively and the terms of
extended supervision under the sentences consecutively and
in the order in which the sentences have been pronounced.

A felony offender not serving a life sentence is entitled to release to extended
supervision only after he or she has served the term of confinement in the prison
portion of the sentence. WIS. STAT. § 302.113(2). Consecutive sentences imposed

8
Nos. 2018AP2184-CR
2018AP2185-CR

for crimes committed on or after December 31, 1999, “shall be computed as one
continuous sentence,” and the person “shall serve any term of extended
supervision after serving all terms of confinement in prison.” Sec. 302.113(4)
(emphasis added). Ball committed his crimes in 2000. Having other IC yet to
serve, he had not begun any of his ES. Ball thus could not have “completed” any
of his sentences by the time of his resentencing.

¶20 The court likewise concluded that the passage-of-time factor did not
benefit Ball. When originally sentenced, his only possible expectation was that he
would serve eighty-five years. The court found that, when viewed in full context,
the fifteen years—less than eighteen percent of his total sentence—served at the
time of his resentencing was not significant.

¶21 Citing State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618
N.W.2d 881, Ball argues that his expectation of finality in his sentence was
legitimate because the sentence undisputedly was illegal. See id., ¶6. In Willett,
the circuit court wanted to order the sentences for Willett’s three convictions to
run consecutively to the probation-revocation sentence he was to receive four days
later, but believed that the law prohibited that structure and thus ordered them to
be served concurrently. Id., ¶¶1, 6. The court then discovered that its
understanding of the law was mistaken and, four months later, ordered that the
three sentences be served consecutively to the revocation sentence. Id., ¶1. This
court held that Willett had a legitimate expectation of finality in his original,
lighter sentence because it was based on court error. Id., ¶¶1, 6.

¶22 While he begins by noting the illegality of the original sentence,
Ball seizes on the four months versus fifteen years. The entire picture is what
makes Ball’s case different from Willett’s. Although, like Willett’s, Ball’s

9
Nos. 2018AP2184-CR
2018AP2185-CR

original sentence was in error, Ball received a lesser one upon resentencing, while
Willett’s resentence was stiffer. Willett does not stand for the proposition that any
error of law at the initial sentencing or any time period beyond a few months gives
a defendant a legitimate expectation of finality.

¶23 For the above reasons, Ball’s expectation of finality was not
legitimate. Accordingly, there was no double-jeopardy violation.

2. Sentence Credit

¶24 All agreed Ball was entitled to 5409 days’ sentence credit.
Counsel’s prejudicial error, Ball contends, was the failure to argue that, under
State v. Lamar, 2011 WI 50, 334 Wis. 2d 536, 799 N.W.2d 758, he is entitled to
the credit on each of the eight concurrent sentences imposed at the original
sentencing. Ball looks to Lamar, which held that:

[A]n offender is not entitled to additional sentence credit
pursuant to WIS. STAT. § 973.04 when (1) the vacated
sentence was originally imposed concurrent to a separate
sentence, (2) the separate sentence is not vacated, (3) the
vacated sentence is reimposed consecutively to the non-
vacated sentence, and (4) the time that the defendant
requested was served in satisfaction of the sentence that
was not vacated.

Id., ¶41.

¶25 Ball reads the Lamar holding to say that the only time a court can
deny additional sentence credit is when all four factors are not met and points out
that in his case there was no nonvacated sentence. Ball over-reads it. It neither
says nor implies “only when.” Indeed, the court expressly prefaced it with the
caveat that the “unusual” facts of the case made its holding “narrow.” Id. It
would make no sense, and Lamar does not teach, that whenever a court

10
Nos. 2018AP2184-CR
2018AP2185-CR

resentences a defendant on a multi-count case—which, perforce, vacates the
original sentence—the defendant is entitled to sentence credit on the individual
counts of the vacated sentences.

¶26 Alternatively, Ball points out that the resentencing court knew from
the DOC correspondence that the original eighty-five-year sentence included an
illegal twenty years. From there, he deduces that his resentence of seventy-seven
years is illegal and argues that counsel ineffectively failed to argue that his new
sentence could not exceed sixty-five years, the legal portion of his initial sentence.

¶27 The court decreased Ball’s overall IC from forty to thirty-eight years
and his overall ES from forty-five to thirty-nine years. Ball’s counsel thus
obtained for him a decreased overall sentence from eighty-five to seventy-seven
years. And Ball does not—he could not—argue that any of the new individual
sentences is illegal as above that crime’s statutory maximum.

¶28 By citing North Carolina v. Pearce, 395 U.S. 711 (1969), Ball
implies that his “increased” sentence was vindictive. The Pearce court required
that, if the court later imposes a more severe sentence, “the reasons for [its] doing
so must affirmatively appear.” Id. at 726. But “[s]ubsequent case law has
significantly narrowed the holding of Pearce to create a ‘presumption of
vindictiveness’ only in situations where ‘there is a reasonable likelihood that the
increase in sentence is the product of actual vindictiveness on the sentencing
authority.’” Lamar, 334 Wis. 2d 536, ¶46 n.13 (citing Alabama v. Smith, 490
U.S. 794, 799 (1989). The resentencing court’s decision was painstaking and
thorough. Beyond that, Ball did not receive an increased sentence, nor does he
suggest what counsel might have argued to show vindictiveness.

11
Nos. 2018AP2184-CR
2018AP2185-CR

3. Restitution

¶29 The resentencing court reordered the originally ordered $24,998.32,
but told Ball’s attorney he could request a restitution hearing within thirty days.
Ball asserts that he objected to the amount from the outset because he “didn’t
wreck anything,” yet, despite his insistence, defense counsel failed to request a
hearing. A defendant who disputes restitution at a sentencing hearing may request
a restitution hearing. See WIS. STAT. 973.20(13)(c). This ineffectiveness claim
also falls short.

¶30 The record substantiates the ordered restitution sum. It includes
insurance reimbursement for the car-jacked Cadillac, which the insurer deemed
“totaled,” repair bills for the vehicle Ball struck as he sped through Cedarburg, and
that owner’s deductible. The only point of dispute was that the car-jacking
victim’s insurer paid her $15,370, she bought a replacement vehicle for $9000,
and both sums were included in the restitution total. Ball contends the victim
attempted to “double-dip[]” by “fraudently” submitting the $9000 claim. 7
Accepting that he persisted in his request for an evidentiary restitution hearing, he
does not explain how one would have made any difference.

¶31 In sum, Ball’s motion asserting ineffective assistance did not
sufficiently plead that counsel’s performance was deficient or prejudicial in not
arguing double jeopardy and finality of sentence or that sentence credit was
misapplied. He also did not sufficiently plead that he was in any way prejudiced
because he did not have a restitution hearing. Trial counsel cannot be ineffective
7
Defense counsel and the State agreed to subtract the $9000, but Ball declined that offer
claiming he wanted to dispute the entire amount.

12
Nos. 2018AP2184-CR
2018AP2185-CR

for failing to raise meritless arguments. State v. Allen, 2017 WI 7, ¶46, 373
Wis. 2d 98, 890 N.W.2d 245. As he did not establish entitlement to a Machner
hearing, his ineffective-assistance-of-counsel claims fail.

B. Sentence Modification Based on New Factor

¶32 Ball claims a 2018 DOC letter and computation worksheet regarding
sentence credit on the IC portion of his sentences is a “new factor.” He argues that
the correspondence indicates that he completed his sentences on two counts in
case No. 00CF358 and three counts in case No. 00CF367, such that the court was
prohibited from resentencing him on those counts and that those sentences should
be dismissed.

¶33 Wisconsin circuit courts have inherent authority to modify criminal
sentences upon the defendant’s showing of a “new factor.” State v. Harbor, 2011
WI 28, ¶35, 333 Wis. 2d 53, 797 N.W.2d 828. A new factor is “a fact or set of
facts highly relevant to the imposition of sentence, but not known to the trial judge
at the time of original sentencing, either because it was not then in existence or
because, even though it was then in existence, it was unknowingly overlooked by
all of the parties.” Rosado v. State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975).

¶34 The defendant must prove the existence of a new factor by clear and
convincing evidence. Harbor, 333 Wis. 2d 53, ¶36. “[I]f a court determines that
the facts do not constitute a new factor as a matter of law, ‘it need go no further in
its analysis’ to decide the defendant’s motion.” Id., ¶38 (citation omitted). But if
a new factor is present, the court determines whether it justifies modifying the
sentence. Id. Thus, to prevail, the defendant must demonstrate both the existence
of a new factor and that it justifies sentence modification. Id.

13
Nos. 2018AP2184-CR
2018AP2185-CR

¶35 We agree with the postconviction court that Ball simply trots out the
same already-presented completed-sentence argument the court had taken into
account in structuring his resentence and that we have dispensed with as not
viable. As Ball has not begun to serve any ES—and he cannot until he serves all
of his IC—none of those sentences, whether consecutive or concurrent, are
complete. The 2018 date of the DOC letter does not make it a new factor.

¶36 Ball has not proved by clear and convincing evidence that a new
factor exists. We therefore need not analyze whether sentence modification is
justified. See Harbor, 333 Wis. 2d 53, ¶38.

By the Court.—Judgments and orders affirmed.

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

14