State v. Jeffrey J. Wickman

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.
November 2, 2021
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. 2020AP1184 Cir. Ct. No. 2013CF1363

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JEFFREY J. WICKMAN,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
MARC A. HAMMER, Judge. Affirmed in part; reversed in part and cause
remanded for further proceedings.

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).
No. 2020AP1184

¶1 PER CURIAM. Jeffrey Wickman, pro se, appeals from an order
denying without a hearing his postconviction motion for plea withdrawal based on
alleged ineffective assistance of counsel or, in the alternative, for resentencing
based upon an illegal sentence. We conclude that the circuit court properly denied
Wickman’s plea withdrawal motion without a hearing, but that Wickman was
entitled to resentencing. Accordingly, we affirm in part, reverse in part, and
remand for further proceedings.

BACKGROUND

¶2 The State charged Wickman with first-degree intentional homicide;
burglary of a dwelling; burglary with a dangerous weapon; theft of movable
property; and possession of a firearm by a felon, with repeater allegations for all
but the homicide charge. Wickman pled no contest to the firearm count while the
other charges were still pending trial, and he does not challenge that conviction on
appeal. Wickman subsequently pled no contest to a reduced homicide charge of
felony murder, as a repeat offender, in exchange for the State’s agreement to
recommend dismissal of the remaining charges, with the burglary and theft
charges being read in. The circuit court accepted Wickman’s plea following a
thorough colloquy that Wickman also does not challenge. As relevant here, the
court then imposed a sentence of twenty-seven years’ initial confinement and nine
years’ extended supervision on the felony murder count.

¶3 Wickman’s postconviction counsel filed a no-merit appeal under
WIS. STAT. RULE 809.32 (2019-20)1 on Wickman’s behalf. This court rejected

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

2
No. 2020AP1184

counsel’s no-merit report after identifying potentially meritorious issues relating to
the length of the extended supervision component of Wickman’s sentence and to
the DNA surcharge. We then dismissed the no-merit appeal without prejudice and
reinstated the time for Wickman to file a postconviction motion under WIS. STAT.
RULE 809.30, with a filing deadline of June 16, 2016. We explicitly noted that
Wickman’s subsequent pursuit of postconviction relief would not be limited to the
grounds discussed in our order.

¶4 Wickman failed to file a postconviction motion under WIS. STAT.
RULE 809.30 within the time period provided by this court. More than four years
after the dismissal of his no-merit appeal, Wickman filed a pro se motion under
WIS. STAT. § 974.06 seeking plea withdrawal or, in the alternative, resentencing
based upon the extended supervision issue previously identified by this court. The
circuit court denied the motion without a hearing. It concluded that the motion
was procedurally barred because Wickman did not provide an adequate reason
why the motion should be heard after Wickman missed the reinstated RULE 809.30
deadline provided by this court. Wickman now appeals, contending that he is
entitled to a hearing on his postconviction motion.

DISCUSSION

¶5 As a threshold matter, Wickman disputes the circuit court’s
determination that his claims were procedurally barred. Although the State does
not explicitly concede the issue, it asks this court to decide the appeal on grounds
other than the procedural bar employed by the circuit court. Because Wickman
never had a merit appeal or postconviction motion under WIS. STAT. RULE 809.30,
and because counsel’s no-merit report under WIS. STAT. RULE 809.32 was rejected
and the no-merit appeal was dismissed without prejudice, we conclude that there

3
No. 2020AP1184

was no procedural bar to Wickman raising his claims for the first time in a
postconviction motion under WIS. STAT. § 974.06. Rather, Wickman was in the
same position as any other defendant whose time to file a postconviction motion
under RULE 809.30 has expired—the precise situation to which § 974.06 applies.
Thus, Wickman was not required to provide any reason for his delay in seeking
relief. See State v. Aaron Allen, 2010 WI 89, ¶40, 328 Wis. 2d 1, 786 N.W.2d
124.

1. Plea Withdrawal

¶6 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. John
Allen, 2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. Non-conclusory
allegations should present the “who, what, where, when, why, and how” with
sufficient particularity for the court to meaningfully assess the claim. Id., ¶23. In
the context of a claim of ineffective assistance of counsel, that means the facts
alleged would, if true, 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. No hearing is required,
however, when the defendant presents only conclusory allegations or when the
record conclusively demonstrates that the defendant is not entitled to relief. State
v. Sulla, 2016 WI 46, ¶¶27-30, 369 Wis. 2d 225, 880 N.W.2d 659. We will
independently determine whether the allegations in a plea withdrawal motion are
sufficient to warrant an evidentiary hearing. State v. Hendricks, 2018 WI 15, ¶17,
379 Wis. 2d 549, 906 N.W.2d 666.

¶7 Wickman claimed in his postconviction motion that his trial counsel
provided ineffective assistance, leading to a manifest injustice warranting plea

4
No. 2020AP1184

withdrawal. See generally State v. Krieger, 163 Wis. 2d 241, 249-51 & n.6,
471 N.W.2d 599 (Ct. App. 1991) (discussing manifest injustice standard).
Wickman further asserted that he would have gone to trial on the original charges
but for a series of alleged errors by counsel.

¶8 First, Wickman alleged that his trial counsel failed to advise him of
the elements of the original first-degree intentional homicide charge. In
conjunction with this allegation, Wickman asserted that he did not understand the
elements of the offense—in particular, that the State would need to prove
Wickman’s mental intent. We note, however, that the element of intent is largely
self-evident from the name of the offense, intentional homicide. Wickman’s
assertion that he did not understand that the State would need to prove such an
obvious element is conclusory because Wickman did not explain what he
mistakenly thought the State would need to prove. Moreover, the record
conclusively demonstrates that Wickman was aware from the complaint and the
preliminary hearing that the State contended Wickman had strangled the victim to
death with a ligature. Wickman does not propose any theory under which such a
manner of death could be anything other than intentional.

¶9 Wickman’s allegation that his counsel failed to advise him about the
elements of first-degree intentional homicide is also insufficient to demonstrate
prejudice because it does not explain why Wickman otherwise would have chosen
to go to trial. As the State points out, by entering a plea to the felony murder
charge, Wickman admitted to his participation in the underlying burglary. If
Wickman’s proposed defense was that someone else intentionally killed the victim
during a burglary in which Wickman knowingly participated, Wickman could still
have been found guilty of intentional homicide as party to the crime or, at a
minimum, of the same lesser-included felony murder charge to which he pled. If

5
No. 2020AP1184

Wickman’s proposed defense was that the homicide occurred at a different time
than the burglary, and that Wickman was not present when the victim was killed,
the intent element would not even have been at issue.

¶10 Second, Wickman alleged that his trial counsel misinformed him
that, if convicted of the original first-degree intentional homicide charge,
Wickman would spend the rest of his life in prison without the possibility of
release. Wickman claims counsel should instead have advised him that the circuit
court could set an eligibility date for extended supervision after twenty years. We
conclude this allegation is insufficient to demonstrate deficient performance by
counsel, however, because counsel’s advice was realistically sound. Given
Wickman’s age of forty-nine years, the heinous nature of the home invasion and
murder, and the additional four charges Wickman was originally facing, Wickman
was facing the strong probability of spending the rest of his life in prison if he
went to trial. Counsel acted within the norms of professional responsibility by
assessing the strength of the State’s case and advising Wickman as to what the
most likely sentence would be.

¶11 Third, Wickman alleged that his trial counsel failed to investigate or
discuss with him possible defenses to the original homicide charge. Wickman
points out that there were no fingerprints or DNA linking him to the victim’s body
or to the unrecovered ligature used to strangle the victim, and that the eyewitness
did not report seeing Wickman wearing gloves. He asserts that counsel therefore
should have obtained an expert witness to opine that, if Wickman had strangled
the victim, there would be a “scientific certainty” of recovering Wickman’s
“personal identifiers” from the victim’s body.

6
No. 2020AP1184

¶12 Once again, Wickman’s allegations are conclusory because he offers
only unsupported speculation as to what opinion an expert witness could have
offered. In any event, this was not a situation where forensic evidence was
recovered from the victim’s body that did not match Wickman. Rather, no
forensic evidence from the perpetrator was recovered from the body at all.
Whether the lack of forensic evidence was statistically unusual would not have
assisted the jury to determine whether Wickman or someone else had been the one
to strangle the victim. Therefore, counsel’s failure to seek an expert opinion
regarding the likelihood of leaving forensic evidence during strangulation was
neither deficient performance nor prejudicial.

¶13 Wickman also contends that the victim’s high blood alcohol level
would have supported a theory of self-defense. However, Wickman does not
allege that he told counsel he killed the victim in self-defense. Therefore, counsel
would have no reason to investigate that theory. In sum, none of Wickman’s
allegations regarding his trial counsel’s performance were sufficient to warrant an
evidentiary hearing on plea withdrawal.

2. Sentence

¶14 Finally, Wickman challenges the extended supervision portion of his
sentence on the felony murder conviction. The State responds that Wickman has
failed to develop this issue by merely “parroting” this court’s analysis from

7
No. 2020AP1184

Wickman’s no-merit appeal.2 However, Wickman’s discussion sets forth a series
of statutes and case law relevant to the issue in a coherent argument.

¶15 As Wickman correctly notes, the penalty for felony murder was “not
more than 15 years in excess of the maximum term of imprisonment” for the
underlying crime. See WIS. STAT. § 940.03 (2013-14). The crime underlying the
felony murder charge in this case was armed burglary, with a maximum term of
fifteen years’ imprisonment. See WIS. STAT. §§ 943.10(2), 939.50(3)(e)
(2013-14). Thus, the maximum penalty available on the felony murder charge,
before applying the penalty enhancer for repeat offenders, was thirty years’
imprisonment.

¶16 The maximum term of initial confinement for felony murder was
seventy-five percent of the total imprisonment, or twenty-two and one-half years.
WIS. STAT. § 973.01(2) (2013-14); see State v. Mason, 2004 WI App 176, ¶¶10,
21, 276 Wis. 2d 434, 687 N.W.2d 526, superseded by statute on other grounds
(treating felony murder as a stand-alone crime subject to the seventy-five percent
rule, rather than as a penalty enhancer). The remaining seven and one-half years
of the maximum imprisonment for felony murder was available for extended
supervision. Sec. 973.01(2) (2013-14).

¶17 The penalty enhancer for repeat offenders added an additional six
years to the maximum available imprisonment. See WIS. STAT. § 939.62(1)(c).

2
The State observes that this court described the illegal sentence issue as “arguably
meritorious” in our no-merit opinion, rather than “in fact meritorious.” However, the only
question before this court in a no-merit appeal is whether there is any issue of arguable merit. We
would therefore frame our discussion of any meritorious issue in a no-merit appeal as being one
having arguable merit.

8
No. 2020AP1184

However, no portion of a penalty enhancer can be imposed as extended
supervision. State v. Volk, 2002 WI App 274, ¶2, 258 Wis. 2d 584, 654 N.W.2d
24. Therefore, Wickman reasons, the maximum available term of extended
supervision for felony murder as a repeat offender was also seven and one-half
years. See State v. Kleven, 2005 WI App 66, ¶¶26-27, 280 Wis. 2d 468, 696
N.W.2d 226. Based upon this analysis, Wickman contends that the circuit court’s
imposition of a term of nine years’ extended supervision was illegal.

¶18 The State has offered no interpretation of the relevant statutes and
cases under which the amount of extended supervision imposed here would be
legal. We conclude that Wickman’s interpretation of the statutes and cases is
correct and that Wickman’s sentence is illegal.

¶19 Wickman asks this court to commute the extended supervision
component of his sentence to seven and one-half years. The State asks this court
to remand the matter to the circuit court for resentencing. Consistent with Volk
and Kleven, we will remand for resentencing.

By the Court.—Order affirmed in part; reversed in part and cause
remanded for further proceedings.

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

9