State v. Jacob Allan Bertelsen

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.
January 30, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP47-CR Cir. Ct. No. 2021CF395

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JACOB ALLAN BERTELSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Douglas County: KELLY J. THIMM, 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).

¶1 PER CURIAM. Jacob Bertelsen appeals from a judgment
convicting him of two felonies and from an order denying his postconviction
No. 2023AP47-CR

motion. Bertelsen contends that: (1) evidence seized from his vehicle without a
warrant should have been suppressed; and (2) his attorney provided
constitutionally ineffective assistance by failing to argue that the automobile
exception to the warrant requirement did not apply here because Bertelsen’s
vehicle was not readily mobile.

¶2 We conclude that Bertelsen forfeited his right to directly challenge
whether the automobile exception applies in this case. We further conclude that
Bertelsen’s attorney did not perform deficiently by failing to raise the mobility
issue because it is an area of unsettled law, especially under the facts of this case.
Accordingly, we affirm.

BACKGROUND

¶3 Police officers responding to a call of a disturbance discovered
Bertelsen and another man, Michael Valentine, standing beside two vehicles
connected by jumper cables in a parking lot shared by several businesses,
including an O’Reilly Auto Parts store. Valentine told the officers that he was an
off-duty employee of O’Reilly’s and had been “banging” on the fuel pump of
Bertelsen’s vehicle, trying to fix it, while also attempting to jump start the vehicle.

¶4 The officers recognized Bertelsen and arrested him for violating a
temporary restraining order earlier in the day. One of the officers walked over to
Bertelsen’s vehicle and through the window observed what appeared to be a
methamphetamine pipe in plain view. The officer then searched the vehicle and
recovered baggies of methamphetamine and other drug paraphernalia.

¶5 The State charged Bertelsen with possession of methamphetamine
with intent to deliver and several other offenses. Bertelsen moved to suppress the

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evidence seized from his vehicle, challenging whether the officer had probable
cause for the search. After the circuit court denied the suppression motion,
Bertelsen pled guilty to the drug charge and a bail jumping count, in exchange for
the dismissal of six other charges and a joint sentencing recommendation,
consisting of four years’ initial confinement followed by four years’ extended
supervision. The court accepted Bertelsen’s pleas and followed the parties’
sentence recommendation.

¶6 Bertelsen then moved to withdraw his pleas on the basis of
ineffective assistance of counsel. Bertelsen alleged that his trial attorney should
have raised an additional ground for suppressing the evidence seized from
Bertelsen’s car—namely, that the automobile exception to the warrant requirement
did not apply because Bertelsen’s vehicle was not readily mobile.

¶7 At an evidentiary hearing on the plea withdrawal motion, Bertelsen’s
trial attorney testified that he had no strategic reason for failing to raise the vehicle
mobility issue; he merely did not think of it. Valentine testified that due to the
fuel pump issue, Bertelsen’s vehicle was not working and was not able to be
driven away during the entire time that the police were at the scene. Valentine
could not recall whether he informed the officers that the vehicle was inoperable.
Valentine also did not know what was causing the fuel pump issue, noting that it
could be anything from a loose wire, to a plugged fuel filter, to the vehicle being
out of gas. He had hooked up the jumper cables to ensure that the fuel pump had
sufficient voltage to work. Valentine thought that he might have been able to get
the vehicle running again if he would have had more time to work on it before the
police arrived. He stated that the vehicle was towed away from the parking lot the
following day.

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No. 2023AP47-CR

¶8 The officer who conducted the search testified that, aside from
seeing an open hood and jumper cables attached to the battery, he did not observe
anything that would lead him to believe that Bertelsen’s vehicle was inoperable.
The vehicle was not on blocks or missing any parts, and it did not have any flat
tires. As far as the officer knew, the vehicle would be fine if it could be jump
started.

¶9 The circuit court denied the plea withdrawal motion, reasoning that
the officer who conducted the search could reasonably have believed that
Bertelsen’s vehicle was readily mobile. The court further noted that Bertelsen’s
trial attorney did not perform deficiently by failing to raise what the court deemed
to be a novel legal issue. Bertelsen now appeals, claiming that the evidence seized
from his car without a warrant should have been suppressed based upon his car’s
lack of ready mobility and that his attorney provided ineffective assistance of
counsel by failing to raise that issue.

DISCUSSION

¶10 As a threshold matter, Bertelsen acknowledges that he failed to
preserve his right to direct review of the vehicle mobility issue because he did not
raise it in his suppression motion prior to entering his plea. Bertelsen nonetheless
asks this court to disregard his forfeiture and address the issue on the merits
because it involves a question of law rather than of fact, it has been fully briefed
by the parties, and it is of sufficient public interest to merit a decision. See State v.
Counihan, 2020 WI 12, ¶27, 390 Wis. 2d 172, 938 N.W.2d 530 (explaining that
forfeiture is a doctrine of judicial administration). We are not persuaded,
however, that the factual scenario presented here recurs so frequently as to warrant

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a decision. We will therefore examine the vehicle mobility issue only within the
context of Bertelsen’s related claim of ineffective assistance of counsel.

¶11 To establish that counsel has provided constitutionally ineffective
assistance, a defendant must prove two elements: (1) deficient performance by
counsel; and (2) prejudice resulting from that deficient performance. State v.
Sholar, 2018 WI 53, ¶32, 381 Wis. 2d 560, 912 N.W.2d 89. We will not set aside
the circuit court’s factual findings about what actions counsel took or the reasons
for them unless they are clearly erroneous. Id., ¶35. However, whether counsel’s
conduct violated the constitutional standard for effective assistance is ultimately a
legal determination that this court decides de novo. Id. We need not address both
elements of the test if the defendant fails to make a sufficient showing on one of
them. State v. Swinson, 2003 WI App 45, ¶58, 261 Wis. 2d 633, 660 N.W.2d 12.
Here, we conclude that Bertelsen has failed to establish deficient performance by
his trial attorney.

¶12 In order to demonstrate deficient performance, a defendant must
overcome a presumption that counsel’s actions fell within a wide range of
professional conduct. Strickland v. Washington, 466 U.S. 668, 689 (1984). “The
question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or
most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citation
omitted). “A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Strickland, 466 U.S. at 689. Under prevailing
professional norms, counsel is not required to take action in an area where the law

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is unsettled. State v. Hanson, 2019 WI 63, ¶28, 387 Wis. 2d 233, 928 N.W.2d
607.

¶13 The automobile exception to the warrant requirement of the Fourth
Amendment allows police to search a vehicle if it is “readily mobile and probable
cause exists to believe it contains contraband.” State v. Marquardt, 2001 WI App
219, ¶29, 247 Wis. 2d 765, 635 N.W.2d 188 (quoting Pennsylvania v. Labron,
518 U.S. 938, 940 (1996)). In Marquardt, this court held that a vehicle that was
in working order, but was inaccessible to the defendant because it had been
impounded by the police, was still readily mobile. Id., ¶¶40-43. Neither
Marquardt nor any other Wisconsin case brought to our attention addresses what
condition a vehicle must be in to be considered readily mobile. For instance,
could a vehicle be considered readily mobile if it were temporarily disabled by a
dead battery or flat tire? Could the possibility that a vehicle may be moved by
being towed suffice?

¶14 The parties each cite cases from other jurisdictions that have
addressed similar questions. Because those cases are persuasive only, and not
binding on this court, we conclude that the law regarding what constitutes a
readily mobile vehicle remains unsettled in Wisconsin. Consequently, Bertelsen’s
attorney was not obligated to raise the issue in his suppression motion, see
Hanson, 387 Wis. 2d 233, ¶29, and the circuit court properly denied Bertelsen’s
motion for plea withdrawal.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2021-22).

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