State v. Bret J. Dorton

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.
June 13, 2023
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. 2022AP223-CR Cir. Ct. Nos. 2017CF805
2018CF394
2022AP224-CR 2018CF490
2022AP225-CR 2019CF268
2022AP226-CR

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRET J. DORTON,

DEFENDANT-APPELLANT.

APPEALS from judgments and an order of the circuit court for
Outagamie County: VINCENT R. BISKUPIC, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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).
Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

¶1 PER CURIAM. Bret Dorton appeals from four judgments of
conviction entered as part of a global plea agreement and from an order denying
his postconviction motion to withdraw his pleas in each of the four cases. The
sole issue on appeal is whether Dorton was entitled to a hearing on his plea
withdrawal motions. We conclude that the facts alleged in the plea withdrawal
motions were insufficient to warrant an evidentiary hearing because, even if true,
they did not establish the prejudice element of Dorton’s claim of ineffective
assistance of counsel. We therefore affirm.

BACKGROUND

¶2 In Outagamie County case No. 2017CF805 (Appeal
No. 2022AP223-CR or “the theft case”), the State charged Dorton, as a repeat
offender, with: (1) a second or subsequent offense of possession of
methamphetamine, as a party to a crime; (2) obstructing an officer; (3) retail theft;
and (4) possession of drug paraphernalia. These charges arose from a shoplifting
incident at a Target store, during the investigation of which Dorton gave police a
false name and police discovered a syringe of methamphetamine in Dorton’s car.

¶3 In Outagamie County case No. 2018CF394 (Appeal
No. 2022AP224-CR), the State charged Dorton with: (1) second-degree reckless
injury; (2) delivery of a schedule II narcotic; and (3) two counts of felony bail
jumping. These charges were based on allegations that Rose1 was hospitalized
after overdosing on fentanyl that Dorton supplied to her.

1
These matters involve two overdose victims. Pursuant to the policy underlying WIS.
STAT. RULE 809.86(4) (2021-22), we use pseudonyms instead of the victims’ names.

(continued)

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

¶4 In Outagamie County case No. 2018CF490 (Appeal
No. 2022AP225-CR), the State charged Dorton with two counts of felony bail
jumping. These charges were based upon Dorton’s failure to comply with bond
conditions in the theft case requiring him to report weekly to Outagamie County
Criminal Justice Treatment Services for urine testing.

¶5 In Outagamie County case No. 2019CF268 (Appeal
No. 2022AP226-CR or “the heroin case”), the State charged Dorton with two
counts of delivering heroin. These charges were based on allegations that Nina
died of an overdose after Dorton supplied Nina and another woman with heroin.

¶6 Relevant to these appeals, the State provided Dorton with a police
report describing an interview that Sergeant Lidbury of the Appleton Police
Department conducted with Rose at the hospital on the night of her overdose,
along with a partial video of the interview. According to the police report, Rose
told Lidbury that Dorton had picked her up in his car and that Rose then took four
Xanax pills “in her possession” and crushed morphine that she had “procured”
with the intent of committing suicide. Lidbury asked Rose whether the crushed
morphine she ingested could have been heroin. Rose agreed it was possible, but
said Dorton told her “the valley was dry.” Lidbury told Rose that he did not
believe that statement because he “knew Dorton to always score heroin.” When
Lidbury asked Rose whether what she took felt like heroin or morphine, she
responded that she did not know because she “fell out right away.” When Lidbury

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

asked whether Rose had obtained the crushed morphine from Dorton, she said that
Dorton had it with him when he picked her up.

¶7 Lidbury then discussed Nina’s fatal overdose with Rose, and
Lidbury said that Dorton had provided Rose with heroin or morphine that had
“almost killed her.” Lidbury asked whether Dorton knew that Rose was going to
try to hurt herself. Rose stated that Dorton did not know about that, and she
agreed with Lidbury’s suggestion that Dorton was “just assisting by getting the
dope.” Rose said she never specified to Dorton whether she wanted morphine or
heroin; she just wanted to “get high.”

¶8 Dorton’s trial counsel, Gary Schmidt, informed the circuit court at a
pretrial conference held on June 3, 2019, that the defense was seeking any
additional video or audio recording of Rose’s interview. Assistant Attorney
General Peter Hahn informed the court that the State had made efforts to locate
any relevant recordings, but Hahn did not believe any additional recording of
Rose’s interview existed. Two days later, however, (according to an affidavit filed
by Cherie Pfaffendorf, a legal assistant from the Outagamie County District
Attorney’s Office) Pfaffendorf personally handed to Attorney Schmidt a flash
drive containing additional video of the interview.

¶9 On June 6, 2019, the day after the State provided defense counsel
with the interview video, Dorton entered no-contest pleas to the charges of
obstructing an officer, retail theft, delivery of schedule II narcotics, one count of
delivering heroin, and three counts of bail jumping. In exchange, the State
recommended the outright dismissal of the possession of methamphetamine count
and the dismissal as read-in offenses of the possession of drug paraphernalia
count, the second-degree reckless injury count, the second count of delivering

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

heroin, and the remaining bail jumping count. The State further agreed not to
issue an additional charge of first-degree reckless homicide by drug delivery
related to Nina’s death (commonly known as a “Len Bias” charge). After the
circuit court sentenced Dorton at a subsequent hearing, Dorton moved to withdraw
his pleas.

¶10 As grounds for his plea withdrawal motions, Dorton claimed that
Schmidt provided ineffective assistance of counsel by failing to share with Dorton
the video of Rose’s interview, either before Dorton entered his pleas or before
sentencing. Alternatively, Dorton claimed he should be allowed to withdraw his
pleas based upon the State’s failure to provide timely discovery. In support of
these claims, Dorton alleged that he would have gone to trial if he had seen the
video prior to entering his pleas (or moved to withdraw his pleas prior to
sentencing) because the video provided additional grounds to impeach Rose’s
statement that Dorton had provided her with the drugs she used to overdose.
Specifically, Dorton asserted the video showed that Lidbury “manipulated” Rose
into incriminating Dorton while Rose was in a vulnerable state.

¶11 The circuit court denied Dorton’s plea withdrawal motion without a
hearing. The court reasoned that Dorton could not demonstrate a manifest
injustice because: (1) Dorton already had substantial grounds to impeach Rose
based upon the police report; and (2) the fact that Rose was able to deny Lidbury’s
request to search her phone demonstrated that Lidbury’s interview technique on
Rose was not unduly coercive. Dorton now appeals.

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

DISCUSSION

¶12 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. Allen,
2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. No hearing is required
when a motion presents only conclusory allegations or when the record
conclusively demonstrates that the defendant is not entitled to relief. Nelson v.
State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). We review a circuit
court’s decision to deny a postconviction motion without an evidentiary hearing
under the de novo standard, independently determining whether the facts alleged
would, if proven true, establish the denial of a constitutional right. See State v.
Bentley, 201 Wis. 2d 303, 308, 548 N.W.2d 50 (1996).

¶13 In the context of a plea withdrawal claim, the facts alleged must
either: (1) show the plea colloquy was defective in a manner that resulted in the
defendant actually entering an unknowing plea, see State v. Bangert, 131 Wis. 2d
246, 251, 389 N.W.2d 12 (1986); or (2) demonstrate by clear and convincing
evidence some other manifest injustice undermining the fundamental integrity of
the plea, such as coercion, the lack of a factual basis to support the charge,
ineffective assistance of counsel, or failure by the prosecutor to fulfill the plea
agreement, see State v. Cain, 2012 WI 68, ¶26, 342 Wis. 2d 1, 816 N.W.2d 177.
When a claim of manifest injustice is premised upon ineffective assistance of
counsel, the alleged facts further need to establish both that counsel provided
deficient performance and that the defendant was prejudiced by that performance.
State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12. Our
consideration of whether a manifest injustice has occurred is based upon the
entirety of the record. See Cain, 342 Wis. 2d 1, ¶31.

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

¶14 Here, the entirety of the record demonstrates that Dorton’s delayed
receipt of the video (whether attributable to counsel or to the State) did not
prejudice Dorton so as to constitute a manifest injustice. First, the video added
only limited additional impeachment value compared to what was already
available from the police report. Most significantly, the report conveyed that Rose
initially claimed that she had taken Xanax and morphine that she procured on her
own, rather than from Dorton; that Rose was uncertain whether she had taken
heroin or morphine; and that Rose never asserted that Dorton had provided her
with fentanyl—the actual drug found in her system.

¶15 Second, we do not agree with Dorton that the video shows Lidbury
“manipulated” or improperly pressured Rose to state that Dorton provided her
with the drugs on which she overdosed. While Lidbury repeatedly challenged or
questioned Rose’s responses, Lidbury remained calm throughout the interview and
informed Rose that the only thing that would get her in trouble was not telling the
truth. Rose also maintained sufficient will of her own to refuse a request to turn
over her phone. While Dorton asserts that “a calm person can be manipulative,”
he does little to explain how the context here shows that Rose’s will was
overcome.

¶16 Third, Dorton has not provided any plausible explanation for why
the limited additional impeachment value of the video would have persuaded him
to go to trial rather than accept the offered deal. The plea bargain substantially
reduced Dorton’s prison exposure by not only dismissing five charges, but also
precluding the State from filing a Len Bias charge arising from Nina’s overdose
death. Dorton’s motion does not suggest that he would have had any viable
defense against a Len Bias charge related to Nina’s death. Dorton would have

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

little to gain by going to trial to attempt to gain an acquittal on the charges in the
fentanyl case related to Rose’s overdose when doing so would expose him to more
time in prison related to Nina’s death than he could avoid by acquittal on all of the
charges in the fentanyl case combined. See WIS. STAT. §§ 940.02(2)(a) (making
first-degree reckless homicide by delivery of a controlled substance a Class C
felony); 973.01(2)(b)3. and (d)2. (providing maximum terms of twenty-five years
of initial confinement and fifteen years of extended supervision for a Class C
felony); 961.41(1)(a) (making delivery of fentanyl a Class E felony);
973.01(2)(b)5. and (d)4. (providing maximum terms of ten years of initial
confinement and five years of extended supervision for a Class E felony);
940.23(2)(a) (making second-degree reckless injury a Class F felony);
973.01(2)(b)6m. and (d)4. (providing maximum terms of seven and one-half half
years of initial confinement and five years of extended supervision for a Class F
felony); 946.49(1)(b) (making bail jumping a Class H felony); and 973.01(2)(b)8.
and (d)5. (providing maximum terms of three years of initial confinement and
three years of extended supervision for a Class H felony).

¶17 Finally, one of the charges dismissed pursuant to the plea deal was
the second-degree reckless injury count premised upon Dorton providing Rose
with the drugs on which she overdosed. In his statement to the presentence
investigation agent, Dorton did not deny that he had previously provided Rose
with drugs—merely that the drugs Rose overdosed on were the ones that Dorton
had supplied to her. We do not deem it manifestly unjust that Dorton entered a
plea to a charge substantially correlated with conduct to which Dorton
subsequently admitted in exchange for the dismissal of a charge on which he
maintained his innocence.

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Nos. 2022AP223-CR, 2022AP224-CR
2022AP225-CR, 2022AP226-CR

¶18 In sum, we are satisfied that the record as a whole conclusively
demonstrates that Dorton would not have been entitled to withdraw his pleas even
if he were able to prove his allegations that his trial counsel failed to share the
additional video from Rose’s interview with him, or that the State’s failure to
timely disclose the video constituted a discovery violation. Therefore, the circuit
court did not err in denying the plea withdrawal motions without a hearing.

By the Court.—Judgments and order affirmed.

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

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