State v. Jeff Jeter

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 22, 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. 2018AP2209-CR Cir. Ct. No. 2015CF3501

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFF JETER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DANIEL L. KONKOL and DAVID C. SWANSON, Judges.
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).
No. 2018AP2209-CR

¶1 PER CURIAM. Jeff Jeter appeals from a judgment of conviction
for one count of conspiracy to knowingly deliver heroin (more than fifty grams),
contrary to WIS. STAT. § 961.41(1)(d)4. and (1x) (2015-16).1 Jeter also appeals
from an order denying his postconviction motion, which alleged ineffective
assistance of two successive attorneys with respect to Jeter’s potential testimony at
the trial of his co-actor. Jeter argues that he is entitled to resentencing because of
that alleged ineffective assistance. We affirm.

BACKGROUND

¶2 The background facts are undisputed. The State filed a criminal
complaint alleging that seven individuals were involved in heroin trafficking in
Milwaukee. Jeter was charged with the aforementioned crime and agreed to plead
guilty in exchange for the State’s agreement “to leave all sentencing up to the
[c]ourt’s discretion.” The State told the trial court at the plea hearing that another
component of the plea agreement was that Jeter would “provide complete,
accurate and truthful testimony at the jury trial of his co-actors.”

¶3 On January 28, 2016, the trial court accepted Jeter’s guilty plea and
found him guilty.2 The matter was scheduled for sentencing on March 11, 2016.

¶4 On February 15, 2016, the jury trial began for Willie Ford, the man
who the State alleged was the leader of the heroin distribution ring. Jeter was
expected to testify for the State at that trial, which was held in another branch of

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.
2
The Honorable Daniel L. Konkol accepted Jeter’s plea and sentenced him.

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the circuit court. However, on February 17, 2016, Jeter’s trial counsel filed a
motion to withdraw and told the State that Jeter would not be testifying at Ford’s
trial. The trial continued without Jeter’s testimony, and on Friday, February 19,
2016, Ford was found guilty of delivery of heroin but acquitted of another crime.

¶5 That same day, February 19, 2016, the trial court heard trial
counsel’s motion to withdraw. Trial counsel told the trial court:

Your Honor, I filed this motion the other day,
February 17th, my motion to withdraw. We had last been
in court here January 28th [when Jeter pled guilty]. Part of
the plea had to do with Mr. Jeter testifying against Willie
Ford. I went to meet with Mr. Jeter this week on February
16th, [and] discussed his testimony for the trial which
would have been this week.

Mr. Jeter asked for another attorney. He is not
satisfied at this point with the representation[,] with his
understanding of the plea deal and some other issues and
asked for another attorney.

I did bring this motion in the hopes that perhaps
another attorney could be appointed to see if Mr. Jeter still
wanted to testify but that was unable to be done so we’re
here this afternoon on my motion to withdraw as
Mr. Jeter’s attorney.

The trial court then asked Jeter if he wanted a different attorney, and Jeter replied
that he did. The trial court allowed trial counsel to withdraw. Another attorney
was appointed to represent Jeter (hereafter referred to as “sentencing counsel”).

¶6 At sentencing, the prosecutor told the trial court that because Jeter
“opted not to testify” at Ford’s trial, the State was not bound by the plea
agreement. Nonetheless, the State did not recommend a specific sentence to the
trial court, leaving the length of the sentence to the trial court’s discretion, as
originally promised pursuant to the plea agreement.

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No. 2018AP2209-CR

¶7 The defense provided a sentencing memorandum for the trial court
that was written by an investigator. The memorandum briefly addressed Jeter’s
cooperation with the police and commented on the fact that Jeter did not testify at
Ford’s trial, stating: “When [Jeter] was eventually caught and arrested, he
cooperated with the authorities[,] giving a full statement. [Jeter] was also willing
to testify against Mr. Ford, but something was lost in the communication between
[Jeter] and his first attorney.”

¶8 In her sentencing comments, the prosecutor disagreed with that
assertion in the memorandum, telling the trial court:

I don’t agree with the information contained in the private
sentencing memorandum that it was due to a
misunderstanding between him and his attorney.

His attorney … told us that the defendant changed
his mind and didn’t wish to testify so I don’t think that
that’s a confusion. I think that that was his conscious
decision to not follow through with the agreement that he
had bargained for.

¶9 When sentencing counsel offered his sentencing recommendation,
he explained why Jeter chose not to testify, stating:

So it turns out that when the time came for the trial
of Mr. Ford, my client whose life had been threatened at
one point during his dealings with Mr. Ford and the lives of
his family chose not to testify and basically it was from fear
and the reason for that being that Mr. Ford with his
background and so forth was quite an evil person in the
community and was dangerous and was fully capable and
my client was afraid of either being killed himself or
arranging his death in jail or prison or going after his
family members who themselves were afraid of Mr. Ford
and what he could do, so that explains why he did not
testify.

Sentencing counsel urged the trial court not to penalize Jeter for his decision not to
testify. He encouraged the trial court to give Jeter “some credit for the

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No. 2018AP2209-CR

cooperation he gave to the police” and for his acceptance of responsibility “in the
early stages of his case.”

¶10 When Jeter addressed the trial court, he did not mention anything
related to the plea agreement or the fact that he did not testify at Ford’s trial.

¶11 When the trial court pronounced sentence, it noted that Jeter had the
opportunity to testify against Ford “and he chose not to exercise that opportunity.”
The trial court added: “He’s not being punished for it but, my goodness, I can’t
reward him like I can with other people who get rewarded for deciding to testify.
That would make no sense.” The trial court ultimately sentenced Jeter to
seventeen years of initial confinement and eight years of extended supervision.

¶12 Represented by postconviction counsel, Jeter filed a motion seeking
resentencing. He argued that trial counsel and sentencing counsel both provided
ineffective assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(holding that to prove a claim of ineffective assistance of counsel, a defendant
must show that his lawyer performed deficiently and that this deficient
performance prejudiced him). First, Jeter alleged that trial counsel performed
deficiently by “misrepresenting to the prosecutor that [Jeter] would not testify
against the co[-]actors.” Jeter denied that he ever told trial counsel that he would
not testify. Further, he claimed that the trial court imposed a longer sentence than
it would have otherwise imposed because it was told that Jeter refused to testify
against Ford.

¶13 Second, Jeter alleged that sentencing counsel performed deficiently
by failing to tell the trial court or the State that Jeter was willing to testify, and by
not correcting the prosecutor’s assertion at the sentencing hearing that Jeter had
been unwilling to testify against Ford. Jeter claimed that as a result of sentencing

5
No. 2018AP2209-CR

counsel’s ineffectiveness, the trial court did not have accurate sentencing
information on which to base Jeter’s sentence.

¶14 The trial court held a Machner hearing where trial counsel,
sentencing counsel, and Jeter testified.3 See State v. Machner, 92 Wis. 2d 797,
285 N.W.2d 905 (Ct. App. 1979). The key factual disputes were whether Jeter
told trial counsel that he would not testify at Ford’s trial and whether sentencing
counsel should have told the trial court that Jeter was willing to testify.

¶15 The trial court found that trial counsel was more credible than Jeter
and accepted trial counsel’s version of the events.4 The trial court said that trial
counsel could not be faulted where “Jeter, at some point, decided he actually
wasn’t willing to complete one of the terms of the plea agreement which was to
testify” against his co-actors. The trial court concluded that trial counsel had not
performed deficiently.

¶16 The trial court also found that sentencing counsel had not performed
deficiently. The trial court said that based on its finding that Jeter had decided not
to testify at Ford’s trial, there was no need for sentencing counsel to correct the
prosecutor’s statements at the sentencing hearing concerning Jeter’s failure to
testify. The trial court also said that it accepted sentencing counsel’s “strategic
decision” not to “highlight the fact that [Jeter] did not testify at the Ford trial.”

3
The Honorable David C. Swanson presided over the motion hearing and denied Jeter’s
motion.

The trial court said that parts of Jeter’s testimony were “not credible” and “just not
4

believable.”

6
No. 2018AP2209-CR

¶17 Having concluded that neither attorney provided deficient
representation, the trial court said that it would not address the prejudice prong of
the Strickland ineffective assistance test. See id., 466 U.S. at 697 (holding that
there is no reason for a court evaluating an ineffective assistance claim to address
both deficient performance and prejudice if the defendant does not make a
sufficient showing on either one). This appeal follows.

DISCUSSION

¶18 On appeal, Jeter continues to argue that he was denied the effective
assistance of trial counsel and sentencing counsel. The standard of review
presents a mixed question of law and fact. See State v. Johnson, 153 Wis. 2d 121,
127, 449 N.W.2d 845 (1990). “[T]he trial court’s findings of fact, ‘the underlying
findings of what happened,’ will not be overturned unless clearly erroneous.” Id.
(citations omitted). In addition, we do 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) (stating that, “[w]hen required to make a finding of
fact, the [postconviction] court determines the credibility of the witnesses and the
weight to be given to their testimony and its determination will not be disturbed by
this court on appeal where more than one inference may be drawn from the
evidence”). “The ultimate determination of whether counsel’s performance was
deficient and prejudicial to the defense are questions of law which this court
reviews independently.” Johnson, 153 Wis. 2d at 128. With those legal standards
in mind, we turn to the performance of each attorney.

A. Trial counsel’s performance.

¶19 On appeal, Jeter argues that his trial counsel performed deficiently
by “ineffectively communicating materially erroneous information to successor

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No. 2018AP2209-CR

counsel, and, thereby allowing such erroneous information to be presented at
sentencing.” (Underlining and uppercasing omitted.) The State correctly points
out that Jeter is presenting a different argument than he raised at the trial court,
where he argued that trial counsel performed deficiently by “misrepresenting to
the prosecutor that [Jeter] would not testify against the co[-]actors.” The State
urges this court to decline to address the issue because it is raised for the first time
on appeal and to deem Jeter’s original argument abandoned. See State v.
Schulpius, 2006 WI 1, ¶26, 287 Wis. 2d 44, 707 N.W.2d 495 (holding that this
court generally does not review an issue raised for the first time on appeal);
Reiman Assocs., Inc. v. R/A Advert., Inc., 102 Wis. 2d 305, 306 n.1, 306 N.W.2d
292 (Ct. App. 1981) (holding that issues not briefed are deemed abandoned).

¶20 In response, Jeter argues that he did not waive the issue and urges
this court to consider his arguments, given that the relevant facts were developed
at the evidentiary hearing. Because the same crucial factual finding underlies both
of Jeter’s allegations concerning trial counsel, we will address both arguments.

¶21 The trial court found, contrary to Jeter’s testimony, that Jeter told his
trial counsel he was not willing to testify against Ford. This finding is not clearly
erroneous. See Johnson, 153 Wis. 2d at 127. Trial counsel testified that when he
met with Jeter on February 16, 2016, Jeter said “[t]hat he was having second
thoughts about” testifying against Ford and “that he was having concerns about
[trial counsel’s] representation as well.” Trial counsel said that after they talked
for awhile, “it ended with, [‘]no, I do not want to – I do not want you to represent
me, and I do not want to testify.[’]” Trial counsel’s testimony supports the trial
court’s finding, which we will not disturb. See id. The fact that trial counsel
immediately filed a motion to withdraw because he hoped a new attorney would
change Jeter’s mind about testifying does not change our conclusion.

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No. 2018AP2209-CR

¶22 Given the trial court’s finding that Jeter told trial counsel that he was
unwilling to testify against Ford, it follows that trial counsel did not provide
“materially erroneous information” to either the prosecutor or successor counsel
when he told them that Jeter said he would not testify at Ford’s trial. Accordingly,
Jeter has not shown that trial counsel performed deficiently.

B. Sentencing counsel’s performance.

¶23 Jeter argues that sentencing counsel acted deficiently by “failing to
provide the trial court with the information that [Jeter] had been willing to testify
against codefendant Ford.” (Underlining and some uppercasing omitted.) Once
again, Jeter’s argument is premised on his assertion that he was willing to testify
against Ford. The trial court rejected that assertion, finding that Jeter had decided
not to testify. As we concluded above, that finding is not clearly erroneous.

¶24 Jeter also claims that sentencing counsel should not have told the
trial court that Jeter was afraid to testify against Ford. The trial court implicitly
accepted sentencing counsel’s testimony that Jeter “made very clear to [sentencing
counsel] that he was very afraid of Mr. Ford and so was his family.” This finding
is not clearly erroneous, as it was supported by sentencing counsel’s testimony.

¶25 Finally, we are not persuaded that sentencing counsel performed
deficiently by telling the trial court that Jeter had been afraid to testify and also
filing a sentencing memorandum that contained Jeter’s “official position” that
there was a miscommunication with trial counsel concerning his desire to testify.
The record supports the trial court’s finding that sentencing counsel made a
“strategic decision” not to discuss at length the reasons Jeter did not testify against

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No. 2018AP2209-CR

Ford and instead emphasize the positive facts that Jeter gave helpful information
to the police and accepted responsibility early in the case. 5 “A strategic trial
decision rationally based on the facts and the law will not support a claim of
ineffective assistance of counsel.” State v. Elm, 201 Wis. 2d 452, 464-65, 549
N.W.2d 471 (Ct. App. 1996).

¶26 In conclusion, we are not persuaded that trial counsel and sentencing
counsel performed deficiently. Therefore, we will not address Jeter’s arguments
concerning the prejudice prong of the test for ineffective assistance of counsel.
See Strickland, 466 U.S. at 697. We agree with the trial court that Jeter was 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.

5
Sentencing counsel testified that he made a “strategic decision” not to emphasize the
fact that Jeter did not testify at Ford’s trial because counsel “could see no positives in stressing to
the judge that my client had … failed to testify.”

10