State v. Shannon E. Parker

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 21, 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. 2018AP2160 Cir. Ct. No. 2011CF274

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHANNON E. PARKER,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Fond Du Lac County:
DALE L. ENGLISH, 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).
No. 2018AP2160

¶1 PER CURIAM. Shannon E. Parker appeals pro se from a circuit
court order denying his WIS. STAT. § 974.06 (2017-18)1 postconviction motion
without an evidentiary hearing. Parker’s motion raised myriad claims, including
ineffective assistance of trial, postconviction, and appellate counsel,2 and circuit
court error. For the reasons that follow, we affirm.

¶2 Parker was convicted following a jury trial of robbery with use of
force, second-degree sexual assault with use of force, false imprisonment, identity
theft, and battery. The charges arose from an incident wherein Parker forced his
way into the apartment of a woman, sexually assaulted her, repeatedly beat her in
the face, took her credit card, changed its PIN using his own cell phone, and made
several attempts to withdraw money using the credit card.

¶3 Parker’s defense at trial was that the victim misidentified him as the
perpetrator and that he had an alibi. His notice of alibi named four people he
claimed to be with during the time of the assault. Parker filed six motions to
suppress evidence, including DNA collected during a warrantless SANE exam.3
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
Although postconviction counsel and appellate counsel are the same person, their
functions differ. See State ex rel. Smalley v. Morgan, 211Wis. 2d 795, 797, 565 N.W.2d 805
(Ct. App. 1997), abrogated on other grounds by State ex rel. Coleman v. McCaughtry, 2006 WI
49, 290 Wis. 2d 352, 714 N.W.2d 900. While “postconviction representation involves
proceedings in the [circuit] court,” appellate counsel’s work “involves briefing … in this court.”
Smalley, 211 Wis. 2d at 797. We use the moniker “postconviction counsel” when referring to
claims that would have required the filing of a postconviction motion in the circuit court, such as
challenges to the effectiveness of trial counsel, or new claims not raised by trial counsel in the
circuit court.
3
Though not explained in Parker’s postconviction motion or on appeal, a SANE exam
refers to an examination conducted by a sexual assault nurse examiner, usually on a victim of
sexual assault. Like the parties’ appellate briefs, we will refer to the evidence-collection
procedure about which Parker complains as part of a SANE exam.

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The circuit court denied the motions. Parker also vigorously litigated motions
(1) challenging the victim’s two out-of-court identifications as impermissibly
suggestive and (2) for a change of venue on grounds that the pervasive media
coverage made an impartial trial in Fond du Lac County impossible. The court
denied these motions after a hearing.

¶4 Parker was convicted of all counts and appealed, claiming that the
circuit court erroneously denied (1) his motions to suppress the victim’s out-of-
court identifications and (2) his motion seeking to change venue due to prejudicial
pretrial publicity. We affirmed the judgment. State v. Parker, No. 2014AP2098-
CR, unpublished slip op. (WI App Dec. 16, 2015). The Wisconsin Supreme Court
denied review.

¶5 In September 2018, Parker filed the WIS. STAT. § 974.06 motion
underlying this appeal. The motion asserted that trial counsel was ineffective for
failing to bring a motion seeking to introduce a third-party perpetrator defense,
and for “fail[ing] to seek a mental health eval under State Statutes 971.13, 14, 15,
16, 17.”4 The motion also asserted that “postconviction counsel” was ineffective
for failing to: (1) argue that trial counsel was ineffective for failing to raise the
above issues, (2) argue that DNA was taken from him during a SANE exam in
violation of the Fourth Amendment, and (3) “investigate an alibi on Parker’s
behalf.” Finally, the motion asserted that the circuit court erred at sentencing by
evincing bias and failing to consider mitigating circumstances.

4
Like the State, and based on the context of Parker’s motion and his appellate briefs, we
will construe this as a claim that trial counsel should have requested a competency examination.

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¶6 The circuit court denied Parker’s motion without a hearing. It
determined that Parker’s complaints about trial counsel were barred by Escalona-
Naranjo, his complaints about postconviction counsel were meritless, and his
complaints about his sentencing hearing were both untimely and meritless. Parker
appeals.

DISCUSSION

A. Relevant Legal Standards

¶7 Absent a sufficient reason, a defendant is procedurally barred from
raising claims in a WIS. STAT. § 974.06 postconviction motion that could have
been raised in a prior postconviction motion or appeal. See § 974.06(4); State v.
Escalona-Naranjo, 185 Wis. 2d 168, 181-82, 184-86, 517 N.W.2d 157 (1994).
Whether a sufficient reason is stated is a question of law subject to de novo
review. State v. Romero-Georgana, 2014 WI 83, ¶30, 360 Wis. 2d 522, 849
N.W.2d 668.

¶8 “In some instances, ineffective assistance of postconviction counsel
may be a sufficient reason for failing to raise an available claim in an earlier
motion or on direct appeal.” Romero-Georgana, 360 Wis. 2d 522, ¶36. A
defendant asserting the ineffective assistance of counsel must demonstrate that
counsel performed deficiently and that the deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient
performance, “the defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. To prove prejudice, the
defendant must demonstrate that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.

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¶9 To entitle the defendant to a hearing, a postconviction motion “must
include facts that ‘allow the reviewing court to meaningfully assess [the
defendant’s] claim.’” State v. Allen, 2004 WI 106, ¶21, 274 Wis. 2d 568, 682
N.W.2d 433 (alteration in original) (citation omitted). This means the motion
must “allege the five ‘w’s’ and one ‘h’; that is, who, what, where, when, why, and
how,” and it must do so “within the four corners of the document itself.” Id., ¶23.
Conclusory statements that do not contain these key facts are insufficient to entitle
the defendant to a hearing. Id., ¶24. If any of these elements are missing, the
circuit court has discretion to deny the motion without a hearing. Id., ¶12.

B. Photo Identification Procedures

¶10 In his WIS. STAT. § 974.06 postconviction motion, Parker alleged
that his appellate counsel was ineffective for failing to “raise the issue of the photo
lineup” and asserted that the police department did not follow proper lineup
procedures. However, appellate counsel did raise this issue on direct appeal,
claiming that both of the victims’ out-of-court identifications should have been
suppressed as the product of overly suggestive identification procedures. This
court not only rejected Parker’s arguments, but also determined that any potential
error in permitting the evidence was harmless. Parker, No. 2014AP2098-CR,
¶¶10-29.

¶11 The circuit court properly denied this WIS. STAT. § 974.06 claim
without a hearing because it was litigated in a prior appeal. See State v.
Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct. App. 1991) (“A matter
once litigated may not be relitigated in a subsequent postconviction proceeding no
matter how artfully the defendant may rephrase the issue.”). Even if Parker could
obtain review of this claim by reformulating his argument, he is not entitled to

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No. 2018AP2160

relief. Any potential claim is defeated by our prior conclusion that “[a]ny
error in admitting the identifications therefore was harmless.” Parker,
No. 2014AP2098-CR, ¶29.

C. Motion to Admit Third-Party Perpetrator Evidence

¶12 Parker’s WIS. STAT. § 974.06 motion claims that trial counsel was
ineffective for failing to file a Denny5 motion seeking to introduce evidence of a
third-party perpetrator and that postconviction counsel provided ineffective
assistance by failing to challenge trial counsel’s performance. Parker’s motion
does not remotely set forth a colorable claim that trial counsel performed
deficiently by failing to file such a motion or that such a failure was prejudicial.

¶13 At trial, Parker testified that on the day of the assault, he left work
after getting an advance on his wages and drove to various places around town to
buy and use drugs. Eventually, Kevin Schneider and J.V.K. picked him up and the
three went to Schneider’s girlfriend’s apartment. Parker testified that the three sat
at a table and used crack cocaine.

¶14 On the prosecutor’s objection, the circuit court struck as irrelevant
Parker’s testimony suggesting that he lost his cell phone at the apartment, and that
one of the people with whom he was doing drugs might have overheard him recite
his PIN number. The court ruled that this was not relevant to his alibi defense and
that he had not filed a Denny motion seeking to introduce evidence that Schneider
or J.V.K. actually committed the crime. Trial counsel agreed that they were not
trying to prove that a known third party committed the crime.

5
State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984).

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No. 2018AP2160

¶15 To introduce evidence suggesting that a known third party
committed the crime for which the defendant is on trial, the defendant must show
a “legitimate tendency that the third party could have committed the crime.” State
v. Denny, 120 Wis. 2d 614, 623, 357 N.W.2d 12 (Ct. App 1984). The legitimate
tendency test requires the defendant to show that the third party had motive,
opportunity, and a direct connection to the crime. Id. at 623-24. See also State v.
Wilson, 2015 WI 48, ¶¶51-52, 54, 56-59, 362 Wis. 2d 193, 864 N.W.2d 52
(ratifying and further clarifying Denny’s legitimate tendency test).

¶16 Parker’s postconviction motion alleges that trial counsel’s failure to
file a Denny motion “caus[ed] his testimony to be stricken and not heard by [the]
jury.” This is insufficient to garner an evidentiary hearing. To begin with, Parker
needed to allege that trial counsel had grounds for filing such a motion. Parker did
not. His motion did not identify which person he claimed was the third-party
perpetrator, let alone facts showing that this third party had motive, opportunity,
and a direct connection to the crime. Trial counsel cannot be ineffective for
failing to file a meritless motion. Because Parker failed to demonstrate that trial
counsel performed deficiently, he cannot establish postconviction counsel’s
ineffectiveness. See State v. Ziebart, 2003 WI App 258, ¶15, 268 Wis. 2d 468,
673 N.W.2d 369 (to establish the ineffectiveness of postconviction counsel, a
defendant bears the burden of proving that trial counsel’s performance was both
deficient and prejudicial).

D. DNA Suppression Issue

¶17 Parker alleges that appellate counsel was ineffective for failing to
argue on appeal that police unlawfully obtained his DNA when a warrantless
SANE exam was performed on him without his permission, in violation of his

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No. 2018AP2160

Fourth Amendment rights. The allegations in Parker’s motion concerning this
claim and why it was not raised earlier are insufficient to require an evidentiary
hearing.

¶18 First, Parker’s motion does not set forth the context, procedural
history, or facts relevant to this claim. For example, he fails to mention that his
trial counsel filed a motion to suppress at least some evidence from the SANE
exam, that the purpose of the exam was to obtain the victim’s DNA, and that the
circuit court denied the motion. Parker’s only argument is that the police could
have obtained a warrant while he was at the police station before being taken to
the hospital. However, it is black letter law that “the mere possibility that a
warrant might have been obtained does not automatically invalidate the police
actions.” State v. Johnston, 184 Wis. 2d 794, 814, 518 N.W.2d 759 (1994).

¶19 Further, Parker’s motion did not explain the nature of the DNA
results he sought to suppress. In fact, his appellate brief states: “And in the end
there was no verifiable evidence found on Parker, linking him to the crime.
Simply violating Parker’s Fourth Amendment by performing a SANE exam on
him.”6

¶20 Additionally, Parker’s motion failed to “allege the five ‘w’s’ and one
‘h’” showing that appellate counsel’s failure to raise the claim was unreasonable
under prevailing professional norms. Similarly, Parker’s motion made no
argument that had the results of the SANE examination been suppressed, there is a

6
The only mention of the materiality of the DNA is in the State’s brief, and the State
asserts that “some of the DNA evidence was favorable to Parker. The DNA analyst testified that
the victim was excluded as a source of DNA from some of the samples obtained from Parker
during the SANE exam.”

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No. 2018AP2160

reasonable probability he would have prevailed at trial, let alone that had appellate
counsel raised this claim, Parker would have prevailed on appeal.

E. Failure to Investigate Alibi

¶21 As stated previously, Parker testified that he was with
Kevin Schneider on the day the crime occurred. His WIS. STAT. § 974.06 motion
alleged that “sometime between January 15th 2016 and April 11th 2016[,]”7 while
incarcerated at Dodge Correctional Institution and working in the records
department, he learned that Schneider was also incarcerated there. Parker “was
able to talk to him briefly and [Schneider] said he would be willing to do an
affidavit.” Parker alleged that appellate counsel told him he would look into it but
he did not hear from appellate counsel again “until [his] case was declined by the
supreme court.” Parker’s motion claimed that counsel “was ineffective by not
following through with new alibi evidence.” We are not persuaded.

¶22 The motion contains insufficient facts to set forth a claim of
ineffective assistance of appellate counsel. First, taking Parker’s assertions as
true, he did not notify appellate counsel of Schneider’s location until after this
court decided his appeal and the matter was pending in the supreme court. The
time for filing a postconviction motion as part of Parker’s direct appeal had lapsed
through no fault of appellate counsel. Parker has not established that appellate
counsel had any duty to act on this information.

7
Parker’s alleged date range is curious. His direct appeal was denied in December 2015.
His petition for review was filed on January 15, 2016, and was denied on April 6, 2016.

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No. 2018AP2160

¶23 Second, and regardless of whether appellate counsel had a duty to
act, the motion did not show how Parker would prove deficient performance or
prejudice. The motion did not contain an affidavit from Schneider, any detail
about what Schneider would have said in such a sworn document, or whether
Schneider was willing to testify at a trial on Parker’s behalf. The motion did not
contain an affidavit from appellate counsel or otherwise explain appellate
counsel’s anticipated testimony at a hearing. The motion did not explain what, if
anything, counsel did with the information he received about Schneider after the
appeal was decided, why he did or did not attempt to contact Schneider, or how
his actions were deficient. These facts are especially important here, where the
record conclusively demonstrates that Parker knew and testified at trial that he was
in Schneider’s company. Parker’s motion did not minimally explain why he failed
to seek Schneider’s testimony before trial or, if he did, why Schneider did not
testify on his behalf.

¶24 The State’s brief analyzes this claim under the rubric of newly
discovered evidence. A defendant seeking a new trial based on newly discovered
evidence must prove by clear and convincing evidence all of the following:
(1) the evidence was discovered after trial, (2) “the defendant was not negligent in
seeking the evidence, (3) the evidence is material to an issue in the case,” and
(4) the evidence is not merely cumulative to the evidence that was introduced at
trial. State v. Avery, 2013 WI 13, ¶25, 345 Wis. 2d 407, 826 N.W.2d 60. If all
four factors are proven, “then it must be determined whether a reasonable
probability exists that had the jury heard the newly-discovered evidence, it would
have had a reasonable doubt as to the defendant’s guilt.” State v. Plude, 2008 WI
58, ¶32, 310 Wis. 2d 28, 750 N.W.2d 42.

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No. 2018AP2160

¶25 We agree with the State’s analysis and conclude that the facts
alleged in Parker’s WIS. STAT. § 974.06 motion did not set forth a colorable claim
of newly discovered evidence. As the State argues, the proposition that Schneider
could provide alibi testimony was known to Parker before trial and is not newly
discovered. For that reason, and because his motion offered no facts explaining
why he did not seek out Schneider’s testimony before trial, Parker did not
establish that he was not negligent in seeking the evidence. Similarly, Parker’s
motion did not allow the circuit court to meaningfully assess whether the
information provided by Schneider’s affidavit would be material or
noncumulative. Parker did not allege what the affidavit would have said, let alone
that Schneider would provide material, noncumulative testimony.

F. Failure to Seek a Competency Examination

¶26 Parker’s WIS. STAT. § 974.06 motion alleged that trial counsel was
ineffective for failing to seek a competency hearing and that postconviction
counsel was ineffective for failing to challenge trial counsel’s performance on this
ground. He alleged that because of “life long struggles with a severe learning
disability and bipolar disorder” he was on governmental social security assistance,
and was “unable to comprehend the proceedings … meaning [he has and had] no
understanding of the law even if it was explained to [him].” He claimed that
because trial counsel, postconviction counsel, and the court were aware of his
diagnoses, he is entitled to a new trial.

¶27 WISCONSIN STAT. § 971.13(1) provides that “[n]o person who lacks
substantial mental capacity to understand the proceedings or assist in his or her
own defense may be tried, convicted or sentenced for the commission of an
offense so long as the capacity endures.” A defendant is competent to proceed to

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No. 2018AP2160

trial if: “1) he or she possesses sufficient present ability to consult with his or her
lawyer with a reasonable degree of rational understanding, and 2) he or she
possesses a rational as well as factual understanding of a proceeding against him
or her.” State v. Garfoot, 207 Wis. 2d 214, 222, 558 N.W.2d 626 (1997).

¶28 Parker’s motion failed to allege sufficient facts to support a
conclusion that he was incompetent to proceed at any point in the proceedings, or
that trial counsel and later, postconviction counsel, provided ineffective assistance
by failing to raise the issue of his competence. Simply being diagnosed with a
mental illness or a learning disability does not equate to incompetence to stand
trial. State v. Byrge, 225 Wis. 2d 702, 713 n.3, 594 N.W.2d 388 (Ct. App. 1999).

¶29 Further, nothing in the record supports his claim that he met either
prong of the test for incompetency, let alone that trial counsel should have
believed him to be statutorily incompetent. Parker ably participated in his defense
throughout trial. Indeed, he testified in his own defense, appropriately responded
to the court’s questions about whether he understood his constitutional rights, and
gave responsive answers to both his attorney and the prosecutor that showed he
understood what was taking place. Additionally, at sentencing, Parker apologized
to the victim, acknowledged that his drug addiction always led him into jail, and
stated that during the trial he felt bad that the victim had to take the stand. He
gave no indication that he did not understand what was taking place at any time
during the proceedings.

G. Circuit Court Error at Sentencing

¶30 In his WIS. STAT. § 974.06 motion, Parker claimed that the circuit
court erred at sentencing by (1) failing to consider that Parker’s mental health

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No. 2018AP2160

issues rendered him “unable to understand the proceedings” and (2) by basing
Parker’s sentence “solely on [the judge’s] own feeling and beliefs.”

¶31 The circuit court properly denied these claims without a hearing
because they are barred by Escalona-Naranjo. Parker’s WIS. STAT. § 974.06
postconviction motion did not allege any reason, let alone a sufficient reason, for
his failure to raise these claims earlier.8

By the Court.—Order affirmed.

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

8
In addition, challenges to the circuit court’s exercise of discretion at sentencing are not
constitutional in nature and cannot be raised in a WIS. STAT. § 974.06 motion. State v. Balliette,
2011 WI 79, ¶34 n.4, 336 Wis. 2d 358, 805 N.W.2d 334. Further, none of the assertions in his
motion remotely set forth a colorable claim of sentencing error.

13