State v. Sulayman M. Manneh

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 25, 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. 2018AP2004-CR Cir. Ct. No. 2015CF792

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SULAYMAN M. MANNEH,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for Dane
County: JOSANN M. REYNOLDS, Judge. Judgment modified and, as modified,
affirmed; order affirmed..

Before Kloppenburg, Graham, and Nashold, 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. 2018AP2004-CR

¶1 PER CURIAM. Sulayman Manneh appeals a judgment of
conviction for repeated sexual assault of a child and exposing genitals to a child,
and an order denying Manneh’s motion for postconviction relief. The parties agree
that Manneh was improperly charged with and convicted of both repeated sexual
assault of a child and exposing genitals to a child, contrary to WIS. STAT.
§ 948.025(3) (2017-18).1 They disagree as to the remedy. Manneh argues that the
circuit court erred by vacating only the conviction for the lesser felony of exposing
genitals to a child to cure the charging error. He argues that, instead, the court was
required to vacate either both convictions or only the greater felony conviction of
repeated sexual assault of a child. He also argues that his counsel was ineffective
by failing to object to the charging error. We disagree. For the reasons set forth
below, we agree with the State that the circuit court properly vacated the lesser
felony as a remedy for the charging error and that Manneh was not denied his right
to the effective assistance of counsel. We affirm.

¶2 The State charged Manneh with repeated sexual assault of a child,
exposing genitals to a child, and child enticement. After a jury trial, Manneh was
convicted of repeated sexual assault of a child and exposing genitals to a child, and
found not guilty of child enticement. The court sentenced Manneh to six years of
initial confinement and ten years of extended supervision on the repeated sexual
assault of a child conviction, and eighteen months of initial confinement and
eighteen months of extended supervision on the exposing genitals to a child
conviction, imposed concurrently.

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP2004-CR

¶3 Manneh filed a postconviction motion seeking to dismiss both
convictions or, alternatively, to dismiss the conviction for repeated sexual assault of
a child. He argued that the State had impermissibly charged both offenses contrary
to WIS. STAT. § 948.025(3) and that his counsel was ineffective by failing to object
to the improper charging. In response, the State agreed that Manneh was improperly
charged with both repeated sexual assault of a child and exposing genitals to a child.
It argued, however, that the proper remedy was to vacate the exposing genitals to a
child conviction. The State also argued that its concession of error rendered
Manneh’s ineffective assistance of counsel claim moot and that, in any event, the
claim failed on the merits because Manneh had not shown prejudice.

¶4 In a thorough, well-reasoned decision, the circuit court determined
that the proper remedy for the charging error was to vacate the exposing genitals to
a child conviction rather than both convictions or the repeated sexual assault of a
child conviction. It also determined that Manneh’s ineffective assistance of counsel
claim failed because Manneh could not show prejudice. Manneh appeals.

¶5 On appeal, the parties agree that the State erred by charging Manneh
with both repeated sexual assault of a child and exposing genitals to a child. They
disagree as to the remedy. This presents a question of law subject to our de novo
review. See State v. Cooper, 2003 WI App 227, ¶9, 267 Wis. 2d 886, 672 N.W.2d
118.

¶6 Manneh contends that the circuit court lacked authority to dismiss
only Manneh’s conviction for exposing genitals to a child as a remedy for the
charging error. In support of this position, Manneh cites language from Cooper,
267 Wis. 2d 886, ¶15, holding that “a court may reverse a conviction on the repeated
acts charge under WIS. STAT. § 948.025(1) when the proscription against multiple

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No. 2018AP2004-CR

charges in § 948.025(3) is violated.” He contends that it follows from that holding
that courts lack authority to reverse any convictions other than a repeated sexual
assault of a child conviction to remedy a § 948.025(3) violation. He argues that
here, the State should not be allowed to reap the benefits of having proceeded with
both charges at trial, rather than having to choose which to pursue, with the attendant
risks involved with foregoing the other. He asserts that allowing the State to benefit
from its error will encourage prosecutors to improperly charge multiple offenses
contrary to § 948.025(3). He contends that the State should not be allowed to “play
fast and loose with the judicial system” by improperly proceeding with both counts
at trial, and then picking which conviction it wants to keep after having failed to
make the proper charging decision.

¶7 The State responds that the circuit court properly dismissed the
exposing genitals to a child count as a remedy for the violation of WIS. STAT.
§ 948.025(3). It asserts that, under State v. Torkelson, 2007 WI App 272, ¶26, 306
Wis. 2d 673, 743 N.W.2d 511, vacating both convictions is not an appropriate
remedy.2 See id. (rejecting claim of right to new trial based on convictions for
multiple counts contrary to § 948.025(3), and explaining that “[n]othing in the
statute indicates the remedy for a violation is anything other than dismissal of the
prohibited charges.”). It further asserts that, under the rationale of Cooper and
persuasive California case law, a court may vacate either a repeated sexual assault
of a child conviction or a sexual assault or exposing genitals conviction to cure a

2
Manneh asserts in his reply brief that State v. Torkelson, 2007 WI App 272, ¶¶25-26,
306 Wis. 2d 673, 743 N.W.2d 511, is distinguishable because, there, Torkelson failed to request a
hearing on his claim of ineffective assistance of counsel under State v. Machner, 101 Wis. 2d 79,
303 N.W.2d 633 (1981), and because Torkelson asked for a new trial rather than dismissal of the
counts. We are not persuaded that those distinctions negate the underlying holding cited by the
State: “Nothing in the statute indicates the remedy for a violation is anything other than dismissal
of the prohibited charges.” See Torkelson, 306 Wis. 2d 673, ¶26.

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No. 2018AP2004-CR

violation of § 948.025(3). It contends that the circuit court properly vacated the
exposing genitals to a child conviction based on the facts of this case because: (1) all
of the evidence as to the exposing genitals charge was also admissible to prove the
repeated sexual assault of a child charge; and (2) the repeated sexual assault
conviction was most commensurate with Manneh’s culpability.

¶8 In Cooper, 267 Wis. 2d 886, ¶¶1-5, 10, we addressed the question of
the proper remedy after Cooper was convicted of repeated sexual assault of a child
and three counts of sexual assault of a child involving the same child and the same
time period, contrary to WIS. STAT. § 948.025(3). The circuit court had vacated the
single conviction for repeated sexual assault of a child and left in place the three
convictions for sexual assault of a child. Cooper, 267 Wis. 2d 886, ¶1. Cooper
argued that the court was required to vacate the three separate sexual assault of a
child convictions rather than the single repeated sexual assault of a child conviction.
Id., ¶8. We disagreed. Id. We found persuasive recent California case law
addressing the same question under a California statute sufficiently similar to
§ 948.025(3) to provide guidance. Cooper, 267 Wis. 2d 886, ¶10. We explained
that we were persuaded by the California court’s reasoning that the repeated sexual
assault of a child offense should be vacated “because the specific felony offenses
carried a more substantial aggregate sentence and were most commensurate with
[the defendant’s] culpability.” Id., ¶¶12-13 (quoted source omitted). Accordingly,
we held that “a court may reverse a conviction on the repeated acts charge under
WIS. STAT. § 948.025(1) when the proscription against multiple charges in
§ 948.025(3) is violated.” Id., ¶15 (emphasis added).

¶9 Applying the reasoning we set forth in Cooper, we conclude that the
circuit court properly vacated Manneh’s conviction for exposing genitals to a child
as a remedy for the violation of WIS. STAT. § 948.025(3). Contrary to Manneh’s
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No. 2018AP2004-CR

arguments, we did not hold in Cooper that a court must vacate the conviction for
repeated sexual assault of a child whenever there is a violation of § 948.025(3).
Rather, we held that a court may vacate the repeated sexual assault of a child
conviction and that, under the facts of that case, that was the proper remedy.3
Cooper, 267 Wis. 2d 886, ¶¶13-15. We rejected Cooper’s contention that the court
could only uphold the charge filed first in time, and determined that Cooper had not
demonstrated why such an interpretation was in the interest of justice. Id., ¶13.
Rather, we were persuaded that the court had authority to uphold the conviction that
was most commensurate with Cooper’s culpability. Id., ¶¶12-13. Here, Manneh
has not disputed the State’s contentions that all of the evidence as to the exposing
genitals count would have been admissible as to the repeated sexual assault of a
child count and that the repeated sexual assault conviction was most commensurate
with Manneh’s culpability. Manneh does not provide any facts to establish that the
State was playing “fast and loose” with the judicial system by charging both
offenses, or that it has reaped the benefits of its charging error. Thus, as in Cooper,
the court had authority to uphold the conviction that was most commensurate with
Manneh’s culpability, and Manneh has not demonstrated that another outcome is
required in the interest of justice.

¶10 Manneh also argues that the circuit court erred by denying his claim
of ineffective assistance of counsel without a hearing. He alleges that his trial
counsel performed deficiently by failing to object to the charging error prior to trial,
and that Manneh was prejudiced because: (1) he was convicted on a count that

3
As Manneh points out, the Cooper court relied on the additional fact, not present here,
that Cooper had contributed to the error by moving to consolidate the separate cases against him.
State v. Cooper, 2003 WI App 227, ¶14, 267 Wis. 2d 886, 672 N.W.2d 118. We are not persuaded,
however, that this distinction renders Cooper inapposite. Rather, despite the factual differences
between the cases, we find the underlying analysis in Cooper persuasive.

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No. 2018AP2004-CR

should have been dismissed; and (2) he had to face three charges at trial rather than
two, which, he asserts, “is generally not considered beneficial from a defense point
of view.” See Strickland v. Washington, 466 U.S. 668, 687-694 (1984) (claim of
ineffective assistance of counsel must show that counsel’s performance was
deficient and also that the deficient performance prejudiced the defense).

¶11 The State responds that the circuit court properly denied Manneh’s
ineffective assistance of counsel claim without a hearing. It argues that Manneh
cannot show prejudice because the court has now vacated the count that would have
been dismissed had counsel objected prior to trial, and all of the same evidence
would have been introduced at trial even if the exposing genitals count had been
dismissed pretrial. Manneh replies that a Machner hearing is necessary to establish
defense counsel’s intent in failing to object. See State v. Machner, 101 Wis. 2d 79,
303 N.W. 2d 633 (1981).

¶12 We conclude that the circuit court properly denied Manneh’s claim of
ineffective assistance of counsel without a hearing. A circuit court must hold a
Machner hearing only if the postconviction motion “on its face alleges sufficient
material facts that, if true, would entitle the defendant to relief.” State v. Allen,
2004 WI 106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. However, “if the motion 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 court has the discretion to deny the motion without a hearing.
Id.

¶13 A claim of ineffective assistance of counsel must establish both
deficient performance and prejudice, and failure to show either prong defeats the
claim. Id., ¶26. “The proper test for prejudice in the context of ineffective

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No. 2018AP2004-CR

assistance of counsel is whether 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.” State v. Jenkins, 2014 WI 59, ¶37, 355 Wis. 2d 180,
848 N.W.2d 786 (quoted source omitted). Here, as set forth above, Manneh argues
that he was prejudiced by his counsel’s failure to object to the charging error because
he faced three rather than two charges at trial and was erroneously convicted of an
additional count. However, the circuit court granted Manneh’s postconviction
motion as to the exposing genitals to a child conviction, curing the charging error.
Additionally, Manneh has not disputed that all of the evidence as to the exposing
genitals to a child charge would have come in at trial to support the repeated sexual
assault of a child charge. Manneh’s bald assertion that it was not beneficial to him
to face an additional charge at trial is insufficient to establish a reasonable
probability of a different outcome had the charge been dismissed before trial. We
conclude that the circuit court properly exercised its discretion by denying the
ineffective assistance of counsel claim without a hearing.

¶14 Finally, the parties point out that, while the court granted Manneh’s
motion to vacate the exposing genitals to a child conviction, the court did not enter
an amended judgment of conviction with that conviction vacated. Accordingly,
upon remand, the circuit court shall enter an amended judgment of conviction
without the conviction for exposing genitals to a child. The judgment of conviction
is modified to remove the conviction for exposing genitals to a child and, as
modified, affirmed.

By the Court.—Judgment modified and, as modified, affirmed; order
affirmed.

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No. 2018AP2004-CR

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

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